Congress relies on executive branch information to carry out its functions. When it creates a budget, the President’s budget request and individual agency testimony are critical to understanding the effect of proposed changes. When it considers new legislation, government officials are asked to testify and share their views. When Congress is seeking information on emerging issues, agency reports are often the first—and most trusted—source of information. When the executive branch provides this information, it often does so through a coordinated process, managed by the Office of Management and Budget within the Executive Office of the President. As a result, the President has a say in what Congress hears regarding agency expertise. This Note explores the instances where Congress has explicitly shut the President out of this process, and the consequences of that decision. The provisions of federal law that limit presidential control of information, referred to as “independent-reporting requirements,” are one of the many ways that Congress can ensure agency independence. This Note collects and describes these provisions, exploring both their policy implications and their constitutionality. In addition, this Note argues that a more widespread use of these statutory tools would solve a significant problem currently facing Congress, namely the information imbalance between the elected branches.
Note
A “Corporate Democracy”? Freedom of Speech and the SEC
In Citizens United, the Supreme Court stated that increased recognition for corporate speech rights is not problematic because corporations are themselves mini-democracies; shareholders have mechanisms to check management control over corporate speech. But due to statutory changes and judicial actions, these checks and balances are no longer effective. Managers have nearly unbridled power over corporations’ expanded speech rights, allowing them to use companies as outsized megaphones for their own personal political and social positions.
An axiom of First Amendment doctrine is that the remedy for speech that some find problematic is “more speech, not enforced silence.” Thus, if the increase in speech rights for corporate managers is an issue, the solution is not to rein in those rights but rather to see how investors’ speech is limited and to remove those barriers, enabling investors to fully participate in the corporate democracy.
Securities and Exchange Commission (“SEC”) regulations prohibit investors from communicating about corporate elections without filing disclosures and providing proxies to every shareholder. These regulations limit investor speech and are slanted in favor of management because they exacerbate the collective-action problem among shareholders who oppose poorly performing managers. Investors should challenge these regulations on First Amendment grounds, and courts should apply some form of exacting scrutiny because speech in corporate elections is as important as political speech in many circumstances. Striking down these regulations would restore balance to the investor–management relationship and allow corporate speech to fully reflect the will of companies’ true owners: their shareholders.
The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries
This Note challenges William Blackstone’s modern position as the “oracle of the law” in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This Note looks beyond the usual story of Blackstone’s influence, as told by the significant circulation of his work. It turns instead to the work’s practical significance for legal education in the decades preceding the Constitutional Convention. By using curricula and student notes—referred to as commonplace books—to discover what was actually considered influential in the legal profession of the period, a more comprehensive perspective of eighteenth-century legal thought is uncovered. While Blackstone was apparently known to these late colonists, his work was far from “the most widely read law book in eighteenth-century America.” Instead, more traditional treatises and English reporters dominated legal learning until at least 1787. It is these admittedly more impenetrable works which should inform our understanding of the common law as it existed at the Founding.