Emory Law Journal


We live, it is said, in a second Gilded Age, in which politics is dominated by corporate power and elite business interests. But how does corporate money flow into politics? This Article provides an original empirical analysis of when and why corporations engage in particular forms of political activity and uses those findings to develop a novel, empirically-grounded approach to the First Amendment’s treatment of traceability mandates in politics.

We analyze the conditions under which firms shift between (1) using their political action committees (PACs) to contribute to candidates and political parties, and (2) engaging in less traceable forms of political activity, like lobbying, in which the specific targets of firms’ influence efforts are unknown. This Article identifies a key variable that explains when and why corporations shift from lighter (more traceable and direct) to darker (less traceable and more indirect) channels of political engagement. We demonstrate that corporate political activity grows darker as a firm’s reputation grows more negative. This dynamic produces the disquieting result that the corporate political interventions that are likely to be the most controversial are also those most likely to be deployed in ways the public is least able to monitor.

Our findings indicate that the traceability of money creates a concrete limit on the ability of corporate actors to influence politics—a limit which plausibly applies to political giving more broadly. Corporate donors who are seen as political liabilities find it increasingly difficult to locate politicians who will openly take their money or accept other support. Politicians refuse or return traceable donations from disreputable donors. Our research thus demonstrates that the power of business in politics is more conditional than generally appreciated.

This Article uses these empirical findings to interrogate the relationship between traceability mandates in politics and theories of the First Amendment. While the Supreme Court has prominently struck down restrictions on money in politics in cases like Citizens United v. Federal Election Commission, it has repeatedly upheld a variety of disclosure requirements. For a range of reasons, including the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta, however, disclosure mandates are likely to become an increasingly important site of conflict in both policy and litigation, making it ever more important to assess and theorize the justifications for them.

Our research suggests an empirically-grounded justification: traceability alters politicians’ behavior, causing them to act more consistently with public opinion. In other words, traceability mandates make politicians more accountable to the people. At the same time, there is evidence that traceability policies, and the reduction of darker corporate money in politics they produce, promote the public’s belief that their views shape the political system. Traceability mandates, in sort, advance both objective and subjective forms of democratic accountability. We thus argue that policies that advance the traceability of corporate money in politics not only further core First Amendment values but may be required by them.

By identifying how and why corporate money flows into politics at a fine level of detail, this Article also provides important information that policy makers can use to craft campaign finance and lobbying reforms. Our empirical findings and theoretical analysis support policy changes that increase the traceability of corporate money in politics, including broader and more robust disclosure requirements for corporate lobbying and individual donations made by corporate executives and directors.

Included in

Law Commons