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.
- Arizona — SB 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.
- Maryland — HB 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 Dakota — SB 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.
The Center for Competitive Politics analyzed the Iowa legislation in a letter to lawmakers Monday. CCP’s press release is here. The Des Moines Register’s blog on this development is here.
On the legal front, some organizations are seeking legal clarification from state courts about pre-Citizens United restrictions on independent political speech.
In Minnesota, the state chamber of commerce has filed suit to clarify state law on independent expenditures. MinnPost.com has an update on that litigation. Some states, like Colorado, have acted preemptively to ask courts to clarify their laws or constitutional clauses restricting political expenditures.
A federal judge in California relied on Citizens United in her ruling striking down several campaign finance restrictions in San Diego. Eric Brown’s PoliticalActivityLaw.com and Prof. Rick Hasen’s Election Law Blog report on the clarification order issued by Judge Irma Gonzalez last week in that case, Thalheimer v. San Diego. Courthouse News Service also has an update on the case. Jim Bopp, who represented the plaintiffs, issued a news release Monday:
Federal Court Extends Citizens United; Enjoins San Diego Law Banning Corporate Contributions to Independent Expenditure Committees
A federal district court today extended the principle of the recent Supreme Court case, Citizens United, to enjoin a law barring corporations from making contributions to independent expenditure committees. The court had earlier ruled that contributions to IE PACs may be unlimited.
Citizens United said that corporations have a First Amendment right to make independent expenditures. Today’s order uses that decision to allow corporations and other organizations to pool their resources with other people’s to make independent expenditures. Individuals and organizations are now free to contribute unlimited amounts for independent expenditures in San Diego, thereby exercising their First Amendment rights to the fullest.
James Bopp, Jr., lead counsel for the plaintiffs, said, “Today’s ruling reaffirms what the Supreme Court said in Citizens United: When it comes to political speech, the government must treat all speakers the same. It cannot discriminate based on the identity of the speaker, or because it doesn’t like a speaker, or doesn’t like the speaker’s message.” Mr. Bopp added that he believes this is the first decision to extend Citizens United’s ruling to allow corporations to contribute to independent expenditure committees.
The court had issued an order on February 16 partially granting the plaintiffs’ motion for preliminary injunction. That order enjoined enforcement of laws that prevented (1) candidates from spending their own money more than a year in advance of the election; (2) political parties from contributing to their candidates; and (3) committees from using contributions greater than $500 for their independent expenditures. It was unclear to the parties, however, whether the Court also meant to enjoin the law that prevented corporations from contributing to independent expenditure committees. The court issued this order today to make its position clear.
The case is Thalheimer v. San Diego, No. 09-CV-2862 (S.D. Cal.).
Wednesday, the American Constitution Society will hold a panel discussion at the National Press Club called, “Citizens United v. FEC: The Decision, Its Implications, and the Road Ahead“.
