Voter Primacy

Abstract

This Article argues that Citizens United v. FEC expanded the constitutionally-cognizable audience for campaign finance disclosure to include a group that had never before been held relevant to compelled disclosure: corporate shareholders. In Part IV of Citizens United, the Supreme Court departed from more than thirty years of disclosure analysis to treat corporate shareholders as a target audience for corporate electoral spending disclosure, holding that the governmental interest advanced by campaign finance disclosure laws includes an interest in helping corporate shareholders “determine whether their corporation’s political speech advances the corporation’s interest in making profits.” This part of the opinion, which was joined by eight of the Court’s nine justices, was path-breaking but has been largely neglected and misunderstood.

To reveal the significance of this expansion of the audience for campaign finance disclosure, this Article compares voters’ and shareholders’ informational interests in campaign finance disclosure. After Citizens United, the main governmental interest that can justify campaign finance disclosure laws is an informational interest, and several justices on the current Supreme Court believe that voters lack legitimate informational interests in some kinds of electoral spending disclosure. Shareholder informational interests offer an alternative justification for laws that compel disclosure by corporate electoral spenders. In the coming years, the Court’s assessment of the relative merits of voters’ and shareholders’ interests in disclosure information may well determine the shape of compelled corporate registration, recordkeeping, disclaimers, and reporting. By clarifying the differences between a “voter primacy” and a “shareholder primacy” approach to corporate spending disclosure, this Article lays bare the consequences of choosing one over the other.

Keywords: Citizens United, campaign finance disclosure, First Amendment, shareholder primacy

JEL Classification: K22