Additional Discussion of H.R. 5175, the DISCLOSE Act, Democracy is Strengthened by Casting Light on Spending in Elections: Hearing on H.R. 5175 Before the H. Comm. on H. Admin., 111 Cong., 2d Sess. 14 (2010) (statement of Professor John C. Coates IV, John F. Cogan, Jr. Professor of Law and Economics, Harvard Law School).
Abstract: The DISCLOSE Act (H.R. 5175) is an important, corrective response to the shock of Citizens United. I am a corporate law scholar, and former corporate lawyer (having been a partner at Wachtell Lipton), and I do not view myself as expert in constitutional law. I will not engage the question of whether Citizens United was or was not consistent with Supreme Court precedent generally, or whether the DISCLOSE Act is constitutional. I can say with confidence, however, that Citizens United radically unsettled long-standing expectations of corporate owners about corporate governance and federal election activity, and that the DISCLOSE Act will assist corporate owners, at a reasonable cost, in trying to address the new governance risks that Citizens United creates. I will comment on three aspects of the DISCLOSE Act that will improve corporate governance – the disclosure requirements, the endorsement requirements, and the inclusion of conduits in the new disclosure regime – as well as the foreign control provisions, each of which I favor.