Constraining and Channeling Corporate Political Power in Trump's America

Abstract

The purpose of this chapter is to flesh out three concrete examples of how corporate law and other areas of business regulation might be adjusted to mitigate some of the harmful effects of corporate political involvement. The first of the three concrete suggestions focuses on the obligations and structure of corporate governance. If corporations are to act as citizens in a democracy, we can require corporations to import democratic norms within their governance structures. The second policy idea relates to taxation. We know that the government can condition tax benefits on the agreement of recipients to do or not do certain things. This legal tool is subject to important constraints, most notably a doctrine that limits the ability of government to condition benefits on the recipient’s waiver of constitutional rights. But I believe a provision can be crafted that would limit corporate political activity and withstand constitutional scrutiny. The third idea is to use state law to include limitations on corporate political activity within the foundational chartering documents of corporations in their state of incorporation. But before sketching these ideas, this chapter will first grapple with the implications of Donald Trump ’s recent election for the debate on corporate political power.

Note: This material has been published in Democracy by the People: Reforming Campaign Finance in America edited by Eugene D. Mazo and Timothy K. Kuhner [https://doi.org/10.1017/9781316822906.011]. This version is free to view and download for private research and study only. Not for re-distribution or re-use. © Cambridge University Press.