34 Pages Posted: 12 Dec 2010 Last revised: 15 Dec 2010
Date Written: December 11, 2010
Citizens United v. FEC made almost every US lawyer, politician and scholar worried or triumphal. Corporations would reign over campaign scenes with corruptions, citizens would lose interest in the democratic process, and shareholders would have no control over management decisions on independent expenditure for political speech, many predicts. Corporations can exercise their freedom of speech to opine on political issues, campaign finance law is coherent and predictable, and shareholders shall monitor the management by fighting against the management or divestiture, winners boast. Several bills are pending at US Congress to prevent foreign governments' influence and make the corporate expenditure more transparent.
Contrary to the situation in the US, Korean law completely prohibits any corporate contribution or expenditure since 2004. In 2006, the Constitutional Court in Korea rejected a challenge without reviewing the merits of the arguments. Thus, politicians have been financing campaign through individual's contribution, supports from the party, and private sources, part of which were reimbursed by the national election commission.
This paper is to review the conflicting visions surrounding Citizens United decision in the United States and apply them to the situation in Korea as it needs more open discussion about this sensitive, but unavoidable issue. What freedom of speech means in a given political society would largely be determined by the history and wording of that constitution. To what extent courts defer to the political determination of the legislative branch also would be decided by the institutional integrity they have built up and prospective response from the ruled. Nonetheless, as Korea has been continuously moving towards a more democratic society, coordination and consensus-building through the political process is becoming more important. Corporations should not be cast away simply because of the possible corruption. Rather, considering the economic importance of corporate entities in national economy, they should be able to participate in the political process and share the cost pertinent thereto in an open and candid manner. I suggest Korean laws be changed to allow corporate contributions and expenditure up to a certain limit like an individual. As a control mechanism, they should be disclosed and reviewed by shareholders, however. Any violators of the rules would be criminally sanctioned. If political consensus needs more time, it might not be too early to discuss this issues more maturely and practically among scholars and politicians.
Notes: Downloadable document is in Korean.
Keywords: Citizens United v. FEC, Corporate Political Contributions, Corporate Issue-Ads, Electioneering Communications, Corruption And Corporate Independent Expenditure, Protection of Shareholders and Political Speech, DISCLOSE ACT, Political Funds Law, Public Election Law
Suggested Citation: Suggested Citation
Jeong, Young-Cheol David K., Corporate Powers and Political Speech - Implications for Korea of Recent US Supreme Court Decisions (Korean) (December 11, 2010). Available at SSRN: https://ssrn.com/abstract=1723663 or http://dx.doi.org/10.2139/ssrn.1723663