Voter Primacy

April 1, 2015

This Article argues that Citizens United v. FEC expanded the audience for campaign finance disclosure to include a group that had never before been held relevant to campaign finance disclosure—corporate shareholders—and explores the constitutional, policy, and political consequences of this change. In part IV of Citizens United, the U.S. Supreme Court departed from more than thirty years of campaign finance 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.” Commentators have failed to appreciate the significance of this part of the opinion, which was joined by eight of the Court’s nine Justices.

The Court’s expansion of the audience for compelled corporate campaign finance disclosure is unlikely to lead to expanded disclosure; to the contrary, it is likely to result in less disclosure of corporate political spending, and particularly in less disclosure that is useful to voters. To explain why, this Article compares voters’ and shareholders’ informational interests in corporate campaign finance disclosure. It then explores potential consequences of the Court’s move to repurpose corporate campaign finance disclosure to serve the informational needs and interests of shareholders. 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 form and content of that disclosure. 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.

April 2015

No. 5

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