译者 | 黎琦 西南政法大学法律硕士

审稿 | 刘寅 西南政法大学

         李梓源 英国布里斯托大学LL.M.

编辑 | 向芯雨 西南交通大学

         詹远 Gary UNSW J.D.

责编 | 王有蓉 中国政法大学


Vol. 2014 No. 3


On Requiring Public Companies to Disclose Political Spending



Mandatory disclosure is a central feature of securities regulation in the United States, yet there is little agreement about how to determine precisely what public companies should be required to disclose. This lack of consensus explains much of the disagreement about whether the Securities and Exchange Commission should require public companies to disclose political spending.


To resolve the political spending disclosure debate I therefore begin by considering the more general question of how to evaluate any proposed mandatory disclosure requirement. I show why the presumption should be against adding a new disclosure requirement, and then identify the kinds of evidence that should be sufficient to overcome this presumption. Applying this new analytic framework to the political spending disclosure debate—and basing this analysis in part on previously unpublished empirical findings—shows that public companies should not be required to disclose political spending.



The SEC and the Courts’ Cooperative Policing of Related Party Transactions




A transaction between a corporation and its director or officer (a “related party transaction”) presents conflicts of interest that could harm, or alternatively, could also benefit the corporation. To sort beneficial related party transactions from detrimental ones, the current legal regime relies on both ex ante screening and ex post litigation. Disclosure plays an essential role in both stages. Based on a set of hand-collected data on actual disclosures from Fortune top fifty companies, this Article casts doubt on the effectiveness of the current regulation of related party transactions. The ambiguity of the federal securities regulations leaves too much room for manipulation. An approving committee of each company exercises considerable discretion not only over which proposed transactions to approve, but also over which transactions to disclose to its shareholders and what information to include in the disclosures. In the context of state corporate law, uncertainty exists in fiduciary duty of loyalty litigation regarding when and whether a court should bypass the fairness test and apply the business judgment rule to a related party transaction that satisfies certain safe harbor conditions, such as approval by disinterested directors. This Article proposes a fix by linking the strategic disclosure problem to the question of the applicable standard of review in fiduciary duty of loyalty litigation. To that end, the court should consider a disclosure under federal securities law as a strong signal of fairness of the disclosed transaction and be more willing to apply the business judgment rule rather than the fairness test in state duty of loyalty litigation. Potential benefits of the proposal include creating better incentives to disclose related party transactions, giving litigants more predictable rules, and allowing for richer accumulation of disclosure data over time, thus providing better guidance to companies and market participants in distinguishing between beneficial and harmful related party transactions.



The Systemic Risk Paradox



Consolidation in the financial industry threatens competition and increases systemic risk. Recently, banks have seen both high-profile mergers and spectacular failures, prompting a flurry of regulatory responses. Yet consolidation has not been as closely scrutinized for clearinghouses, which facilitate trading in securities and derivatives products. These nonbank intermediaries can be thought of as middlemen who collect deposits to ensure that each buyer and seller has the wherewithal to uphold its end of the deal. Clearinghouses mitigate the credit risks that buyers and sellers would face if they dealt directly with each other.


Yet here lies the dilemma: large clearinghouses reduce credit risk, but they heighten systemic risk since the collapse of one such entity threatens the entire financial system. While regulators have tackled the systemic risks posed by large banks, the systemic risks of these nonbank intermediaries have received less attention. In fact, financial reform has spurred clearinghouse growth and consolidation.


This Article examines the paradoxical treatment of regulators toward the systemic risks of clearinghouses and banks. It explores two fundamental questions: Why does the paradox exist, and who benefits from it? This Article borrows from antitrust to offer a framework for ensuring that the entities that control a large clearinghouse (large, heavily regulated banks) do not abuse that clearinghouse’s market dominance.




Speaking Up: The Challenges to Section 501(c)(3)’s Political Activities Prohibition in a Post-Citizens 

United World




Following the Supreme Court’s decision in Citizens United v. Federal Election Commission, there is still one type of corporation that cannot engage in political speech: the nonprofit corporation. Section 501(c)(3) of the Internal Revenue Code prevents nonprofit corporations that hold tax-exempt status from participating in “any political campaign on behalf of (or in opposition to) any candidate for political office.” But recent events show a growing call to reform this provision, referred to as the political activities prohibition. These events include new First Amendment developments, charities allegedly flouting the prohibition in recent elections, the 2013 IRS targeting scandal, and finally a notice of proposed rulemaking promulgated by the IRS and the Treasury Department in 2013 that could change the political activity regulations for both section 501(c)(3) and section 501(c)(4) organizations.

在最高法院对公民联合会诉联邦选举委员会一案作出裁决后,仍有一类公司不得参与政治言论:即非营利公司。《国内税收法》第501(c)(3)条禁止享有免税身份的非营利公司参与“支持或反对政治候选人的任何政治活动”。然而近期发生的事件表明了要求修改该禁令条款的呼声越来越高。相关事件包括新《第一修正案》的发展、慈善团体在近期选举中涉嫌藐视禁令、2013年美国国税局(IRS)的目标丑闻以及2013年美国国税局(IRS)和财政局(the Treasury Department)发布的一则拟议规则制定通知,可能改变第501(c)(3)条和501(c)(4)条的政治活动规则。

This Note responds to these recent events and discusses the purpose and structure of the political activities prohibition, both within section 501(c)(3) and in connection with section 501(c)(4). The Note then examines different constitutional challenges to the political activities prohibition, including First Amendment and selective prosecution challenges stemming from the IRS’ alleged haphazard enforcement of the prohibition.This Note concludes that the political activities prohibition should not be eliminated, but advocates implementing several laws and agency policies to ensure even enforcement of the prohibition.



Intrastate Crowdfunding



Crowdfunding is the practice of raising small amounts of money from a large number of people over the Internet. Until now, businesses trying to raise capital over crowdfunding sites such as Kickstarter have solicited contributions by offering rewards instead of a possible return, which allows them to avoid federal securities laws. However, after proposed SEC rules are finalized, it will be legal for issuers to sell securities–such as equities and interest-bearing debt–over crowdfunding platforms without incurring the expense of registration.


The new federal crowdfunding exemption has been the subject of considerable debate and anticipation in both the media and scholarly literature. However, securities-based crowdfunding is already legal in several states so long as the issuers offer and sell securities only to in-state residents. This Note engages in the first sustained comparison of the state and federal exemptions. It claims that although the state exemptions offer issuers access to a smaller pool of potential investors, they present a viable, lower-cost alternative to the federal exemption because they subject issuers to significantly fewer regulatory expenses. It further claims that in spite of their less stringent requirements, certain features of the state exemptions can help to promote investor protection by encouraging the participation of large investors. This Note concludes by offering four recommendations for improving both the state and federal laws, in each case urging that the exemptions draw on the best aspects of one another.




Member FMIC: Credit-Risk Sharing Within and Without an FMIC-Based Housing Finance System



Everyone agrees that the current chapter in the life of Fannie Mae and Freddie Mac should end. Less clear is what comes next.


Starting in the latter half of 2013, the Senate Banking Committee has explored legislation that would transform the economic and regulatory landscape of housing finance in the United States. S. 1217, the Senate Proposal introduced last summer by Senators Bob Corker (R-TN) and Mark Warner (D-VA), and revised this year by Banking Committee Chairman Tim Johnson (D-SD) and Ranking Member Mike Crapo (R-ID), seeks to replace Fannie Mae and Freddie Mac, and their regulator, the Federal Housing Finance Agency, with a “Federal Mortgage Insurance Corporation” (“FMIC”), an explicit government guarantor of conforming U.S. mortgages. The Senate Proposal would maintain a strong federal presence in housing finance but would require that private capital, through risk-sharing mechanisms, absorb the first 10% of losses. Although the proposal is unlikely to pass Congress in the gridlocked 2014 election season, it carries substantial bipartisan support going into the next Congress.

自2013年下半年起,参议院银行委员会已经着手探索相关立法,以改变美国住房金融的经济和监管形势。去年夏天,参议员Senators Bob Corker和Mark Warner将S1217号参议院提案提交讨论。今年,银行委员会主席Tim Johnson (D-SD)和资深议员Mike Crapo (R-ID)又对其进行了修订,旨在以联邦抵押贷款保险公司(“FMIC”,一家符合美国抵押的适格政府担保人)替代房地美和房利美及其监管机构联邦住房金融局(the Federal Housing Finance Agency)。参议院提案将在住房金融领域产生巨大影响,但是按照风险共担机制,私人资本必须承担前10%的损失。尽管2014年的选举季已经陷入僵局,该提案不太可能获国会通过,但它在进入下届国会中获得了两党的大力支持。

This Note explores the Senate Proposal, focusing closely on two crucial features of the proposed regulatory operation of the FMIC system: the credit-risk sharing mechanisms that the FMIC would employ and the supervision and legal duties of market participants both inside and outside the FMIC apparatus. Primarily, this Note concludes that credit-linked note deal structures provide the most efficient and prudentially safe and sound method of transferring first-loss credit risk from the FMIC to private parties. Secondarily, this Note concludes that the Senate Proposal should also include features to hasten the return of the purely private-label securitization market, such as the placement of an enhanced legal duty on private-label securitization trustees. These conclusions address broad housing finance concepts and will remain germane to the debate no matter the fate of the Banking Committee’s proposed legislation.




[1] 第501(c)(3)条是《美国国内税收法典》(IRC)的一部分,是非营利组织的特定税种,符合第501(c)(3)条要求的组织免征联邦所得税。一般来说,有三类组织可能符合IRC第501(c)(3)条中概述的税务类别:慈善组织、教会和宗教组织以及私人基金会。虽然符合第501(c)(3)条要求的组织可以免除联邦所得税,但禁止利用其活动实质性地影响立法,包括参加任何支持或反对某一政治候选人的竞选活动。



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