Campaign Finance Reform and Corporate Law

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. Brett Bellmore says:

    Not a lawyer, but I’d say #1. Not because it’s viewpoint discrimination, of course, that would require the prohibition to hinge on content. Rather, as a matter of unconstitutional conditions doctrine.

  2. Kevin Outterson says:

    Easiest case is requiring a process (transparency, special committee, vote, shareholder opt out, etc.) before making any charitable or political contributions, as a default rule. The UK has a system for shareholder approval of political contribution budgets in advance.

    Let’s say DGCL permits political donations but gives any shareholder an opt out (automatic dividend of their share of the expenditure). Can’t see how that violates 1A. Or if DGCL requires a supermajority shareholder vote (75%) each year in order to approve a budgeted level of political (or charitable) contributions. Again, not a problem.

    Of course if DGCL banned donations to a particular party, clearly unconstitutional.

  3. Gerard says:

    Brett–you are of course correct that this is not viewpoint discrimination. My mistake, which I will blame on my new father lack of sleep.

  4. Joe says:

    I share Brett’s sentiments here (it’s useful to get a chance to say that now and again), but unsure how ‘interesting’ the matter is — seems pretty clear-cut that such a broad limit is problematic. I guess if you hedge it a bit …