There are just not enough hours in the day to get the job done! This type of “time drought” identified by cognitive scientists takes on democratic significance if the person experiencing it is a democratically elected official. Those elected officials may thereby lack the ability to effectively represent the constituents who put them in office. For federal elected officials, one of the causes of the lack of time to craft policy (the job) is caused by political fundraising burdens (the distraction). As one Congressman put it bluntly, campaign fundraising has become an incredible “time suck” for lawmakers.

The election in 2016 was the most expensive federal election to date. The high price tag in 2016 was attributable to Congressional races. Thus my primary focus in this piece will be on the fundraising burdens experienced by incumbent Members of Congress. Participating in the fundraising arms race is rational behavior for most candidates, because typically the candidate with the bigger campaign war chest wins the election. This fundraising treadmill leads to deleterious effects including dependence on lobbyists for fundraising assistance and for policy making, as well as an unhealthy reliance on a small oligarchic subset of American political donors. Without public financing for Congressional candidates, the only way to avoid the burden of fundraising is to be independently wealthy. And yet, the Roberts Supreme Court seems particularly tone deaf to arguments about preserving the ability of a non-wealthy incumbent elected officials to do their official duties under Article I of the Constitution.

I gave a speech at Columbia Law School at the request of the Federalist Society about campaign finance and boycotts. This is the transcript of that speech as annotated by Harvard Law students.

Since the U.S. Supreme Court's decision in Citizens United v. FEC in 2010, over $800 million of untraceable dark money has been spent in American federal elections. This could include illegal foreign donations. This short article explores why dark money in American elections presents a political sovereignty problem.

Part of what makes corporate political spending so fraught is the how valuable brand identity is to the average firm, the heterogeneous political views of customers and shareholders, as well as the increasing political polarization of the many segments of the America public. This means that corporate political spending which associates a brand with one political party is likely to alienate customers or shareholders who feel strongly affiliated with the opposite political party. American consumers have a long tradition of boycotting goods or services for political reasons and American shareholders have a history of divesting to make a political point. Thus there is a nontrivial risk that customers and investors will vote with their dollars when they discover corporate political activity. Furthermore, the ability to boycott or divest has been given a technological boost with the advent of multiple smartphone applications that provide end-users with instantaneous data about the politics behind mass marketed brands. This technology empowers a consumer to buy goods that are more closely aligned with the consumer’s political views and for investors to do the same with stocks. Finally this piece explores how consumer groups and investors have both coordinated efforts to pressure firms to leave the American Legislative Exchange Council (ALEC). This type of orchestrated one-two punch could be the wave of the future for politically active firms.

Evidence of the inadequacy of our current legal system in dealing with the corporate role in slavery can be found on the docket of the U.S. Supreme Court from 2015. Tucked in among the blockbuster cases about abortion, affirmative action, and political corruption in the 2015–2016 Supreme Court term was a little‐noticed certiorari petition from Nestlé U.S.A. asking, essentially, to be dismissed from a case that alleged the company had aided and abetted the slavery of children in Côte d’Ivoire. One of the troubling things about Nestlé U.S.A.’s asking to be let out of the suit was that its legal argument was not an outrageous request given recent Supreme Court cases that make it nearly impossible for human rights plaintiffs to bring successful suits against multinational corporations in U.S. courts.

This Article argues that, at a minimum, U.S. courts need to be reopened as proper fora for hearing civil human rights cases brought against multinational corporations that do significant business in the United States, regardless of where the harm occurred. The reason that American courts should be reopened is not just to give financial relief to victims, but also to change the calculus within corporations to make slave labor as financially unattractive as possible. But, further, this Article argues that we need to get back to the moral clarity of the Nuremberg trials of the industrialists and have the fortitude to actually prosecute corporate actors that knowingly perpetuate slavery.

The President of the Business Roundtable once infamously said that “corporations were never designed to be democracies…” American courts respectfully disagree and have repeatedly held that the democratic rights of shareholders are sacrosanct. The context for the Business Roundtable President’s comment was the battle over say on pay — a battle the Business Roundtable lost in the United States with the passage of the financial reform legislation known as Dodd-Frank.

As I will explain in this piece, courts’ robust conception of corporate democracy rights for shareholders should protect both shareholders’ ability to have a say on pay and say on politics. Say on pay is the practice in United States, among other nations, of mandating a non-binding shareholder vote on executive compensation at publicly traded firms. A shareholders’ say on politics does not yet exist in America. But theoretically, just as say on pay mandates shareholder democracy in the case of executive remuneration, say on politics would require shareholders to vote on corporate political spending. Binding say on politics votes already exist in the U.K.

Critiques of say on pay and say on politics have been couched as constitutional objections based on either the Tenth or First Amendments of the U.S. Constitution. But at their heart, these objections seem less rooted in the text of the Constitution and more inspired by a cribbed conception of shareholders’ corporate voting rights. To untangle who has the stronger legal argument requires a review of how American courts have conceptualized “corporate democracy.” I conclude that as framed by key courts such as the U.S. Supreme Court, the D.C. Circuit Court of Appeals and the Delaware state courts, “corporate democracy” is a capacious enough concept to justify both shareholders’ say on pay and say on politics.