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118 Colum. L. Rev. Online 1 (2017-2018)

handle is hein.journals/sidbarc118 and id is 1 raw text is: 


VOL.  118                 DECEMBER 11, 2017                  PAGES   1-28


                              Reilly S. Steel*


     In the years since Citizens United v. FEC,' corporate-political-spending
disclosure has become   an  increasingly heated public policy issue. The
portion  of the Court's opinion  that championed   shareholder  rights to
make  decisions about corporate  political speech generated a substantial,
interdisciplinary literature,2 and shareholders responded by demanding
political-spending disclosure through  a bevy of shareholder  proposals.
However,   many  commentators have argued that shareholder activists'
efforts to bring about disclosure on  their own  are bound  to be  inade-
quate, and  in 2011, a group  of law professors petitioned the Securities
and  Exchange  Commission (SEC) for rules that would mandate disclo-
sure  by public  companies-a petition that generated over a million
comment   letters (and considerable controversy).4 Critics of the petition
have  charged  that mandatory  rules are unnecessary  because private or-
dering  should  be sufficient to induce the  optimal level of disclosure,'

     * Juris Doctor 2017, Columbia Law School.
     1. 558 U.S. 310 (2010).
     2. See, e.g., Lucian A. Bebchuk & RobertJ. Jackson, Jr., Corporate Political Speech:
Who  Decides?, 124 Harv. L. Rev. 83, 83 (2010); Rajesh K. Aggarwal et al., Corporate
Political Donations: Investment or Agency?, 14 Bus. & Pol., no. 1, 2012, Article. 3, at 1, 6;
For several critical views of efforts to force disclosure, see Symposium on Corporate
Political Spending, 3 Harv. Bus. L. Rev. 363 (2013).
     3. See Lucian A. Bebchuk & Robert J. Jackson, Jr., Shining Light on Corporate
Political Spending, 101 Geo. L.J. 923, 938-39 (2013) [hereinafter Bebchuk & Jackson,
Shining Light]; infra Appendix at Table A.1.
     4. Lucian Bebchuk & Robert J. Jackson, Jr., The Million-Comment-Letter Petition:
The Rulemaking Petition on Disclosure of Political Spending Attracts More than 1,000,000
SEC  Comment  Letters, Harvard Law Sch. Forum on Corp. Governance and Fin.
Regulation (Sept. 4, 2014), http://corpgov.law.harvard.edu/2014/09/04/the-million-
attracts-more-than-1000000-sec-comment-letters [http://perma.cc/J64F-54PA].
     5. Private ordering refers to the mechanism by which private actors-here,
shareholders and boards of directors-set the rules that govern their conduct. 3 James D.
Cox & Thomas Lee Hazen, Treatise on the Law of Corporations § 15:23, Westlaw (3d ed.,
database updated Dec. 2016).
     6. See, e.g., Larry Ribstein, Should the SEC Regulate Corporate Political Speech?,
Truth  on the  Mkt. (Aug. 4,  2011), http://truthonthemarket.com/2011/08/04/
should-the-sec-regulate-corporate-political-speech  [http://perma.cc/TW5L-7FC3]

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