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29 Yale L. & Pol'y Rev. 217 (2010-2011)
Confronting the Impact of Citizens United

handle is hein.journals/yalpr29 and id is 219 raw text is: YALE LAW & POLICY REVIEW Confronting the Impact of Citizens United Justin Levitt* INTRODUCTION Perceived corporate dominance has spurred a recent populist backlash, on both the political left and political right. In this atmosphere, the Supreme Court's 2oo decision in Citizens United v. FEC,' granting corporations the right to spend directly on express political advocacy, has become the target of a par- ticularly heated critique. This Essay confronts the impact of Citizens United in two respects. Part I first reviews Citizens United's place in the campaign finance constellation. It ar- gues that although the decision was a bold stroke in many ways, its impact on the scope of permissible campaign finance regulation is far less substantial than commonly assumed. Even if Citizens United's incremental impact is mild, it nevertheless has the feel of a final straw. The decision has provoked first furor, and then fear, with opponents invoking images of a dystopian political process overwhelmed by corporations. Yet rarely is the fear of corporate political spending articulated at a level of specificity conducive to assessing, or confronting, the perceived dam- age. Part II takes up that challenge, parsing the concerns at the root of opposi- tion to corporate political spending.' It then offers responsive policy proposals, all well within the regulatory space undisturbed by Citizens United. * Associate Professor of Law, Loyola Law School Los Angeles. I would like to thank Ellen Aprill, Heather Gerken, Rick Hasen, Katie Pratt, Cameron Schroeder, Ted Seto, and the editors of the Yale Law & Policy Review for helpful comments and suggestions. All errors, of course, are my own. 1. 130 S. Ct. 876 (zoo). 2. This Essay leaves aside the robust debate about corporate governance structures' capacity to ensure that corporate political spending is in the interest of the appro- priate stakeholders. See, e.g., Lucian A. Bebchuk & Robert J. Jackson, Jr., Corporate Political Speech: Who Decides?, 124 HARv. L. Rv. 83 (2oo); Ciara Torres-Spelliscy, Corporate Campaign Spending: Giving Shareholders a Voice, BRENNAN CENTER FOR JUSTICE (June 7, 2010), http://www.brennancenter.org/page//publications/ shareholdersvoice2_5_io.pdf; Adam Winkler, Other People's Money: Corpora- tions, Agency Costs, and Campaign Finance Law, 92 GEO. L.J. 871 (2004). Instead, it 217

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