University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2005 How Do Corporations Play Politics? The FedEx Story Jill E. Fisch University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the American Politics Commons, Business Law, Public Responsibility, and Ethics Commons, Business Organizations Law Commons, Economics Commons, Law and Economics Commons, Law and Politics Commons, Law and Society Commons, Legal Studies Commons, and the Politics and Social Change Commons Repository Citation Fisch, Jill E., "How Do Corporations Play Politics? The FedEx Story" (2005). Faculty Scholarship at Penn Law. 1041. https://scholarship.law.upenn.edu/faculty_scholarship/1041 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. How Do Corporations Play Politics?: The FedEx Story Jill E. Fisch* INTRODUCTION ..............................................................................1496 I. FEDEX AND THE DEVELOPMENT OF POLITICAL CAPITAL ....1503 II. FEDEX AND REGULATORY CHANGE: THE NATURE AND ROLE OF POLITICAL ACTIVITY ............................................1511 A. Air Cargo Deregulation ..........................................1512 B. Trucking Deregulation............................................1518 1. The Motor Carrier Act of 1980 ....................1519 2. Intrastate Trucking Deregulation...............1528 C. Unionization and the FAA Rider............................1538 D. Noise Regulation.....................................................1547 E. Other Lawmaking Initiatives .................................1554 III. IMPLICATIONS OF THE CASE STUDY....................................1558 A. Political Activity and Corporate Operations ..........1558 B. The FedEx Story and Campaign Finance Regulation...............................................................1563 CONCLUSION..................................................................................1569 *Alpin J. Cameron Professor of Law and Director, Center for Corporate, Securities and Financial Law, Fordham Law School. Portions of this article were written while the author was serving as Sloan Visiting Professor of Law, Georgetown University Law Center. 2005 Jill E. Fisch. I am grateful to Fordham University, the Sloan Foundation and Georgetown University Law Center for providing financial support for this research. I am also grateful to Bill Bratton, Steve Choi, John Conley, Mitu Gulati, Ed Kitch, Kim Krawiec, Donald Langevoort, Paul Miller, Dan Ortiz, Gideon Parchomovsky, Warren Schwartz, Rob Sitkoff, Jim Snyder, and Fred Tung, and to participants in the University of Pennsylvania Institute for Law and Economics, the Georgetown-Sloan Project on Business Institutions Conference on Field Study Methodology, the Eugene P. and Delia S. Murphy Conference on Corporate Law at Fordham Law School, the Corporate and Securities seminar at the University of Virginia School of Law, and faculty workshops at Georgetown Law Center and the University of North Carolina School of Law for helpful comments on earlier drafts. 1495 1496 VANDERBILT LAW REVIEW [Vol. 58:5:1495 INTRODUCTION Corporate political activity has been the subject of federal regulation since 1907,1 and the restrictions on corporate campaign contributions and other political expenditures continue to increase.2 Most recently, Congress banned soft money donations in the Bipartisan Campaign Reform Act of 2002 (“BCRA”),3 a ban upheld by the Supreme Court in McConnell v. FEC.4 Significantly, although the omnibus BCRA clearly was not directed exclusively at corporations, the Supreme Court began its lengthy opinion in McConnell by referencing and endorsing the efforts of Elihu Root, more than a century ago, to prohibit corporate political contributions.5 Repeatedly, 1. The Tillman Act made it unlawful “for any national bank or corporation . to make a money contribution in connection with any election to any political office.” Ch. 420, 34 Stat. 864 (1907) (codified at 18 U.S.C. § 610 (1948) (repealed 1976)). The Federal Corrupt Practices Act extended the prohibition to “in kind” contributions. Ch. 368, § 302, 43 Stat. 1070 (1925). The Taft-Hartley Act broadened the ban to include expenditures in addition to contributions. Ch. 120, § 304, 61 Stat. 136, 159-60 (1947). In 1976, the Federal Election Campaign Act (“FECA”) was amended to incorporate these restrictions. The FECA currently prohibits “any corporation whatever” from making a contribution or expenditure in connection with an election for federal office. Federal Election Campaign Act of 1971, 2 U.S.C. § 441b (2005) (codified as amended). Corporate lobbying has been regulated by federal law since 1946. The Federal Regulation of Lobbying Act of 1946 required lobbyists to register and disclose their activities to Congress, although the Act contained many loopholes. The Lobbying Disclosure Act of 1995, Pub. L. No.104-65, 2 U.S.C. §§ 1601 et seq. (2005), replaced the 1946 statute and some related regulations with broader registration and disclosure requirements. The Act requires lobbyists to register, report the issues on which they lobby, and disclose the names of their clients along with their receipts and expenditures. See generally Frank J. Connors, Complying With the Lobbying Disclosure Act of 1995, 45 PRAC. LAW. 15 (1999) (explaining requirements of the Lobbying Disclosure Act). Corporations must register the lobbyists they employ and report the issues on which they lobby with an estimate of the total lobbying expenses incurred. Id. 2. The nature, extent and regulation of corporate political activity varies dramatically across countries. Compare Control of Political Donations, New Part XA, Companies Act, 1985 (Eng.) (adopted as schedule 19 to the Political Parties, Elections and Referendums Act 2000) (adopting a new requirement of prior shareholder approval for corporate political contributions), with Michael Baume, Donated Dollars Make Business Sense, AUST. L. FIN. REV., Feb. 7, 2005, at 63 (arguing that corporate failure to donate to political parties is “an abrogation of responsibility”) and Australian Election Commission, Summary of Donations Reported by Donors, http://fadar.aec.gov.au/ (last visited Oct. 28, 2005) (reporting corporate donations as high as AUD 800,000 for the 2003-2004 election year). This Article, by necessity, focuses on the U.S. experience. 3. Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”) (2002) (codified at 2 U.S.C. §§ 431 et seq.). The BCRA also reduces corporate ability to engage in “issue advocacy” by broadening the definition of electioneering communications and prohibiting corporations from making such communications except through segregated funds. 4. 540 U.S. 93, 132-73 (2003). 5. Id. at 115. 2005] THE FEDEX STORY 1497 within the broad context of campaign finance regulation, corporate contributions have been singled out as particularly problematic.6 The federal regulatory scheme is based, in part, on the perception that corporations are able to use their substantial economic resources to influence public policy and thus distort the political process.7 At the same time, political activity is widely viewed as an illegitimate expenditure of corporate funds. Thus, again in the first few lines of the McConnell decision, the Court quoted President Theodore Roosevelt’s statement that “‘directors should not be permitted to use stockholders’ money for political purposes.”8 Similarly, the Court had previously characterized general corporate treasury funds spent on politics as being “diverted” from their proper use, indicating that political activity is not a legitimate business expenditure.9 Media reports about corporate corruption of the political process have fed these concerns. The press, for example, described Enron as buying legislative favors in exchange for political contributions.10 Studies claim that corporate donors use campaign contributions to purchase political influence.11 The media often structures these reports of corporate and other special interest political expenditures to produce heightened impact. For example, the 6. See, e.g., id. at 205 (identifying “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation”) (citations omitted); id. at 206 (observing that “unusually important interests underlie the regulation of corporations’ campaign-related speech”). 7. See FEC v. Beaumont, 539 U.S. 146, 152 (2003) (describing ability of corporations to exert a potentially “deleterious” influence on political elections) (citation omitted); Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990) (“the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures.”). See generally Robert H. Sitkoff, Corporate Political Speech, Political Extortion, and the Competition for Corporate Charters, 69 U. CHI. L. REV. 1103, 1108-23 (2002) (identifying and criticizing many of the traditional justifications for special regulation of corporate political activity). 8. McConnell, 540 U.S. at 115 (internal quotations omitted). 9. See, e.g., Austin, 494 U.S. at 670-71 (“We thus adopted the ‘underlying theory’ of FECA ‘that