Legislative and legal developments post-Citizens United

At the federal level, Sen. Chuck Schumer and Rep. Chris Van Hollen have indicated that they plan to release a bill this week to pare back free speech protections granted by Citizens United v. Federal Election Commission. CCP’s press release on the legislative framework released by Schumer and Van Hollen is here.

Several state legislatures are examining bills addressing Citizens United. Some would simply conform state laws and constitutions to reflect the Supreme Court’s ruling that they government may not prohibit corporations, unions and nonprofit advocacy groups from engaging in independent speech advocating for or against candidates.

The National Conference of State Legislatures posted a round-up of states planning or announcing responses to Citizens United. NCSL also includes a handy summary of states that had pre-Citizens United bans on corporate or union independent expenditures:

  • Connecticut, North Dakota, Ohio, Pennsylvania, West Virginia — Legislators and state officials are reviewing the case and have not yet decided how to proceed.
  • Alaska — The chair of the Senate Judiciary Committee wants the committee to introduce a bill that would require disclosure of corporate spending on ads.
  • ArizonaSB 1444, introduced on February 16, 2010, would require corporations and labor unions that make independent expenditures in candidate campaigns to register and file disclosure reports.
  • Colorado — Governor Bill Ritter has asked the state’s Supreme Sourt to evaluate the constitutionality of two provisions of the state’s constitution that appear to be directly affected by Citizens United.  Also, the state Republican Party has announced its intention to file suit against Colorado’s law. It is possible that the suit could challenge a broader scope of the law than the two sections that are affected by Citizens United.
  • Iowa — The director of the Ethics and Campaign Disclosure Board has sent an e-mail to legislators telling them that Citizens United effectively overturns Iowa law. SF 2354, introduced on February 15, 2010, requires corporations to obtain permission from a majority of their shareholders prior to making an independent expenditure, requires corporations to report their independent expenditures to the Ethics and Campaign Finance Disclosure Board, prohibits coordination between candidates and corporations, and requires certain attributions on corporate-funded advertisements.
  • MarylandHB 616, introduced on February 3, 2010, would require stockholder approval and public disclosure of corporate independent expenditures in excess of $10,000. HB 690 and SB 691 would prohibit government contractors from making independent expenditures. HB 986 and SB 570 would require board of director and stockholder approval for corporate independent expenditures, and would prohibit the distribution of material that is not true.  HB 1029 and SB 543 would establish disclosure requirements for corporate independent expenditures. SB 601 would prohibit corporate contributions to candidates and corporate-funded independent expenditures.
  • Michigan — The secretary of state has posted a detailed description of how Citizens United affects the state, including an FAQ section.
  • Minnesota SF 2353, introduced on February 4, 2010, would repeal the ban on independent expenditures by corporations.
  • Montana — The attorney general has said the state’s ban on corporate expenditures will stay in place until it is challenged.
  • North Carolina — The executive director of the State Board of elections has said that the law appears to be unenforceable, but they are still working to understand the full meaning of the decision.
  • Oklahoma — The Ethics Commission is working on amendments to change and remove the relevant portions of state rules.
  • South DakotaSB 165, introduced on February 1, 2010, would prohibit corporations from making political expenditures without shareholder approval.
  • Wisconsin — The Senate passed SB 43 just two days before the release of the Citizens United decision.  This bill would ban corporate and union funding of electioneering bans and require greater disclosure.  The bill’s sponsors say they are hoping to salvage the disclosure portions of the bill. Also, the Government Accountability Board is considering rules that would require greater disclosure. SB 540, introduced February 17, 2010, repeals Wisconsin’s ban on corporate independent expenditures. It also requires a corporation to file documentation of a vote of shareholders taken within the past two years approving campaign expenditures before making such an expenditure.
  • Wyoming HB 68, which would repeal the ban on independent expenditures by corporations, is pending in the Legislature.

Filed Under: Blog

New York Times endorses First Amendment right for corporations (but only in defense of terrorists)

Corporations, we are regularly told by the so-called campaign finance “reform” community, are not people, and therefore do not enjoy First Amendment protections. In the wake of Citizens United, the gnashing of teeth and rending of garments from “reformers” has grown to hysterical levels.

The New York Times has been among those leading the mob chanting “corporations aren’t people,” noting in their initial editorial response to the Citizens United decision that “Most wrongheaded of all is [the Court’s] insistence that corporations are just like people and entitled to the same First Amendment rights.”

Today the Times appears to reverse course on the First Amendment rights of corporations, although it’s unlikely it realizes it has done so. From today’s New York Times:

On Tuesday, the [Supreme C]ourt hears arguments in Holder v. Humanitarian Law Project. The Humanitarian Law Project… want[s] to provide training in peaceful dispute resolution to the Kurdistan Workers’ Party, which has waged a separatist guerrilla campaign against the Turkish government, and to advise the group on how to petition the United Nations and other international organizations for relief…

The Kurdish group…[is] designated as foreign terrorist organizations by the United States, and the plaintiffs fear they could be prosecuted under the federal material support law and sentenced to as much as 15 years in prison.

The law prohibits giving not only weapons and money, but also less concrete support, like advice and “service.” The plaintiffs argue that these prohibitions go too far, infringing on their rights to free speech and association…

There needs to be strong protection for a core area of protected speech and advocacy. Americans should be able to make arguments to a court on the behalf of terrorist groups…

Filed Under: Blog

Iowa legislative leaders attempt to defy Supreme Court

A bill to regulate independent political speech raises serious constitutional concerns and poses policy and logistical problems, according to an analysis by the Center for Competitive Politics sent to Iowa legislative leaders.

“This legislation would not enshrine Iowa as a leader in good government, it would give Iowa the dubious distinction of being the first state to openly flout the Supreme Court by passing unconstitutional restrictions on independent political speech,” said Sean Parnell, president of the Center for Competitive Politics.

In Citizens United v. Federal Election Commission, the Supreme Court held that “[T]he First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers.” The bill, Senate File 2354, which advanced out of the Iowa Senate’s State Government Committee on an 11-4 vote, would restrict the right of companies to speak out on candidates by micro-managing core political speech.

“The Supreme Court’s decision allowed for disclosure of independent expenditures,” Parnell said. “It did not permit states to throw up a regulatory gauntlet of overly-burdensome shareholder regulations to force companies to run through before they’re allowed to speak out on urgent political issues.”

“This legislation is not meant to protect citizens from harmless independent speech,” he said. “It is meant to stifle the speech of organizations who may oppose powerful incumbents and the politically connected.”

Filed Under: Corporate Governance, Corporate Governance Press Release/In the News/Blog, Corporate Governance State, External Relations Press Releases, External Relations Sub-Pages, Press Releases

National group blasts Iowa Democrats campaign finance bill

Filed Under: In the News

The varied ‘progressive’ reactions to Citizens United

The importance of First Amendment political rights has long been an issue that splits across party lines and ideologies. The Supreme Court’s January ruling in Citizens United v. Federal Election Commission divided the progressive movement in America.

Prominent liberals ranging from ACLU stalwarts to some labor union attorneys to constitutional litigators like Salon.com’s Glenn Greenwald praised the Court’s ruling as a victory for free speech against government censorship. Most other prominent left-of-center folks, including most elected Democrats, railed against the decision with fury—and they were the loudest and most prominent after Citizens United.

What’s behind this split?

Will Wilkinson explains the dynamic in his most recent column in The Week magazine. An excerpt:

When the Supreme Court overturned campaign finance law in Citizens United v. Federal Election Commission last month, civil libertarians and free-speech enthusiasts applauded.  The ruling threw out limits on corporate “independent expenditures” on campaign advertising – the case in point being a hatchet-job documentary on Hillary Clinton produced by a non-profit corporation called Citizens United. Government censorship of political documentaries certainly seems to violate the very sinews of the First Amendment. “Congress shall make no law … abridging the freedom of speech” isn’t very ambiguous, after all.

So I was caught off-guard when MSNBC’s Keith Olbermann called the Citizens United decision “a Supreme Court-sanctioned murder of what little democracy is left in this democracy.” When others followed with similar howls of wounded outrage, I became aware of a gap in my understanding of the progressive Left. I suddenly realized that free speech for big business is to the Left what due process for alleged terrorists is to the Right: an unbearable burden that threatens freedom itself.

For another interesting insight into the doctrinarian divide among the American Constitution Society crowd, listen to a conservation between Harvard Law Professor Larry Lessig and Greenwald with The Young Turks:

Filed Under: Blog

SLAPPed! Coming to a Courtroom Near You

The Center for Competitive Politics is pleased to welcome this guest blog post by Samantha Brown of the Federal Anti-SLAPP Project

Politicians Behaving Badly

I gave (my lawyers) a pile of money, and said go get ‘em.
— Local Michigan official, commenting on a lawsuit he brought against the citizen who organized the recall petition against him.

Right now, in Michigan, some interesting events are unfolding in local politics. In September, police stopped Flushing Township Supervisor Don Schwieman for drunk driving. After refusing to stop immediately, he was ordered out of the car at gunpoint, when police discovered he was wearing only inside-out, backwards shorts. The police report indicated that he falsely identified himself as the chief of police and that police found a commemorative police badge in his glove compartment. The report also indicated that Schwieman’s blood alcohol level was three times the legal limit.

The next morning, Schwieman pleaded not guilty to the charges, and some Flushing residents, already highly dissatisfied with direction their local government was taking, decided enough was enough. Calling the entire incident “embarrassing,” Flushing Township resident Gerry Wood initiated a petition to recall Schwieman.

Schwieman was displeased at the recall, but at the time it was filed, asserted that he had “no intention of reading the recall petition’s language.” A couple weeks later, at the end of October, he became convinced that the recall would be successful. A few weeks after that, he must have found time to read the petition, because in December, he decided to sue Wood for libel and slander. For good measure, he also sued the Genesee County Clerk and Election Commission, for “aiding” in said slander.

Filed Under: Blog, Anti-SLAPP, Anti-SLAPP, Michigan, Missouri, New Mexico, Wisconsin

Wash. lawmakers gambling with flawed tax financing bill for court candidates

The Center for Competitive Politics (CCP) sent a letter to Washington legislative leaders Friday detailing concerns with a bill that would establish taxpayer funded campaigns for the state Supreme Court.

The “Judicial Reform Act” would provide government funds to candidates for the state’s high court. Windfall benefits would be provided to participating candidates facing candidates who opt out of the scheme.

Federal judges in Arizona and Connecticut have ruled similar programs unconstitutional based on the U.S. Supreme Court’s 2008 ruling in Davis v. Federal Election Commission. The Davis decision, which held that the state could not provide preferential benefits to some candidates based on the spending of other candidates, relied on a 1994 appellate court case striking down “rescue fund” provisions in Minnesota’s taxpayer financing program.

“This bill has serious constitutional and policy problems,” said CCP Research & Government Relations Director Laura Renz. “Passing this legislation after two similar state programs were just ruled unconstitutional would be like playing roulette with the judiciary—using taxpayer dollars.”

Filed Under: External Relations Press Releases, External Relations Sub-Pages, Press Releases, Tax Financed Campaigns Press Release/In the News/Blog, Tax Financed Campaigns State, Tax-Financing

Poorly worded poll on Citizens United decision

ABC News and the Washington Post today released polling results on the public response to the Supreme Court’s Citizens United decision.The results, at first glance, don’t show much sympathy and understanding among the general public for the First Amendment and unfettered political speech, but a closer look reveals that the two questions asked perhaps weren’t worded optimally.

The first question is somewhat leading and lacking context:        

…do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections?

80 percent of those polled said they opposed the ruling.

On its face, not the worst way to ask to the question. But specifying “corporations and unions” as being able to “spend as much money as they want to help political candidates win elections” seems designed to conjure images of powerful interests pouring nearly-infinite amounts of money into campaigns to elect politicians who will bend to their will.

Filed Under: Blog

L.A., San Diego lift limits on corporate and union spending in elections



Filed Under: In the News

Citizens United and the Restoration of the First Amendment


Filed Under: In the News

The Center for Competitive Politics is now the Institute for Free Speech.