Legal Commentary

Last week, I wondered what Congress might do to undo the effects of Citizens United and considered some ideas, mostly sounding in changes to corporate law.

Ian Ayres and Bruce Ackerman have an op-ed and blog post with a different, quite interesting proposal: Making federal contracts contingent on contracting corporations agreeing not to engage in electioneering speech--sort of a contractor analogue to the Hatch Act prohibitions on government employees. They argue this would reach almost 75 of the largest 100 publicly held corporations, while leaving most media companies and smaller (and non-profit) corporations unregulated. They also argue that the government could defend this on a genuine anti-corruption rationale (something it could not do with the blanket ban on corporate electioneering: Prohibiting all contractors from directly or indirectly currying favor with the elected officials who decide on contracts and, conversely, protecting them being coerced into supporting candidates as a condition of further contracts.

There is a lurking unconstitutional conditions concern here. But, as they point out, individuals already are subject to these types of restrictions. Their proposal simply treats corporate persons the same as natural persons.