Sarah C. Haan has posted “Opaque Transparency: Outside
Spending and Disclosure by Privately-Held Business Entities in 2012 and Beyond”
on SSRN. Here is a portion of the
abstract:
In this Article, I analyze data on outside spending from the
treasuries of for-profit business entities in the 2012 federal election – the
very spending unleashed by Citizens United v. FEC. I find that the majority of
reported outside spending came from privately-held, not publicly-held
companies, including a significant proportion of unincorporated business
entities such as LLCs, and that more than forty percent of spending by
privately-held businesses was characterized by opaque transparency: Though
fully disclosed under existing campaign finance disclosure laws, something
about the origin of the money was obscured. This happened when political
expenditures were spread among affiliated business-donors, typically donating
similar amounts to the same recipient(s) on similar dates, and when for-profit
business entities were used as shadow money conduits. I also argue that, due to
differences between access-oriented and replacement-oriented electoral
strategies, for-profit businesses engaged in outside spending in a federal
election are likely to be experiencing insider expropriation. The expropriation
of a business entity’s political voice by a controlling person is another
potential way in which voters are misled in our current disclosure regime. In
light of these spending patterns, and evidence of insider expropriation of the
political voice of many privately-held business donors, I argue that
privately-held business entities that engage in federal election-related
spending should be compelled to reveal the individual(s) who control them.