After Citizens United

Last month, the Supreme Court significantly weakened existing campaign finance laws. The Court's ruling in Citizen's United v. FEC — the latest and most sweeping of a long string of court defeats for the existing campaign finance regulations — leaves the legal and financial landscape of elections in a state of great uncertainty. Lawmakers, attorneys and legal experts have been scrambling to shape responses to the ruling at both state and federal levels of government. Some are trying to address the ruling with narrow legislative fixes while other groups are hoping to use the general opposition to the ruling to pass sweeping reforms.

>Read more about the ruling and its ramifications.

The Sunlight Foundation, an organization committed to increasing government transparency, has a list of laws proposed in response to Citizens United here.

Below, we've outlined some of the main issues reformers are hoping to address.


Some of the most straightforward proposals call for increased disclosure requirements by individuals and organizations engaging in political speech. Mandatory disclosure plays a big part in the Court's majority reasoning that unregulated expenditures will not cause undue harm to the integrity of elections. In his opinion Kennedy writes, "With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters." Yet, as Ellen Miller of the Sunlight Foundation points out, disclosure requirements aren't up to the standards the Court seems to think they are: "[T]he disclosure system they describe doesn't yet exist. The current disclosure system is insufficiently 'rapid and informative' and does not make effective use of modern technology." The Sunlight Foundation has laid out a list of disclosure reforms they'd like to see. You can read their proposals here.

But even disclosure provisions have their detractors. Justice Clarence Thomas, while concurring with the overall ruling in Citizens United, wrote in his opinion that the Court did not go far enough, and that the "disclosure, disclaimer, and reporting requirements" in the Bipartisan Campaign Reform Act (McCain-Feingold) are also unconstitutional. He worries about the threat of retaliation from angry citizens or lawmakers. According to Justice Thomas, by forcing the funders to submit themselves to possible retaliation, mandatory disclosure laws chill free speech.

Though courts have generally been friendlier to disclosure requirements than outright bans, the issue may come before the Supreme Court again. Attorney James Bopp, Jr., a primary architect of the Citizens United case, whose stated goal is to strip away every type of regulation on political spending, has set his sites next on disclosure, telling THE NEW YORK TIMES, "Groups have to be relieved of reporting their donors if lifting the prohibition on their political speech is going to have any meaning." You can read more about James Bopp, Jr. and his views here.


Some proposed changes focus on the mechanics of how corporations actually 'speak.' For instance, if a publicly traded corporation spends 'its' money on political speech, that money technically belongs to shareholders. Several bills have been introduced before Congress and in state legislatures to require that corporate executives either inform, or receive consent from shareholders before spending money on political speech.

NYU's Brennan Center for Justice has a report on this topic here.

You can read the summary of Maryland's proposed shareholder rights bill here, and download the full text here here (PDF).


A related question is that of foreign participation in elections. Current law bars foreign nationals from contributing to federal campaign committees. The Citizens United ruling raises questions as to whether foreign-controlled corporations or corporations with foreign shareholders have a right to spend money on political speech. Several members of Congress have introduced bills to prohibit foreign money from making its way into U.S. elections through corporate speech.


In its 1976 opinion in the case Buckley v. Valeo, the Supreme Court set the precedent that restricting money spent on elections is a restriction on speech, and therefore a violation of the First Amendment. Many reformers are looking for alternate approaches to decrease the influence of money on the political process.

One way to level the playing field without restricting spending is voluntary public financing of campaigns. A "clean money" system resembling those already in place in seven states and two cities is now being considered in Congress. The system of voluntary public financing has survived several challenges in court, and has become the preferred system for many clean government advocates.

Some versions of the clean money system do face legal challenges, specifically those that offer matching funds to candidates in response to independent expenditures. Public Campaign outlines the legal challenges to campaign finance laws and public financing here.


Perhaps the most ambitious responses to the ruling are calls for amendments to the Constitution.

Some amendments, like the one introduced in the House by Representative Leonard Boswell, seek only to undo the ruling. Boswell's amendment would add an article reading: "No corporation or labor organization may use any of its operating funds or any other funds from its general treasury to make any payment for any advertisement in connection with a campaign for election for Federal office, without regard to whether or not the advertisement expressly advocates the election or defeat of a specified candidate in the election."

Others, such as one introduced by Representative Donna Edwards, seek to define free speech as a right granted only to people and the press.

Law professor Lawrence Lessig, however, is calling for a convention to craft a more open amendment. He writes, "Amending the Constitution is a profound endeavor, and drafting the text that we would put before the American people for their consideration can't be done by a single person or in a single week. But our shared objective must be an amendment that gives Congress the power to restore its independence, and I am working closely with others now to help craft exactly that amendment."

DEBATING CITIZENS UNITED V. FEC
Libertarian journalist Nick Gillespie and legal scholar Lawrence Lessig discuss public financing of campaigns and the effects of money on politics.

WHAT'S NEXT FOR CAMPAIGN FINANCE?
In the wake of a controversial Supreme Court decision giving corporations and unions more freedom to spend on elections, many federal and state lawmakers are hoping to curb Citizens United V. FEC's effect on elections. Find out how some legislators are fighting to curb Big Money spending even as the Court invalidates laws in 24 states aimed at keeping elections clean. >>CURRENT STATE LAWS AFFECTED BY THE CASE

MOYERS ON MONEY AND POLITICS
View highlights of our coverage of money and politics: campaign finance, lobbying, earmarks and more.

DR. MARGARET FLOWERS ON MEDICARE FOR ALL
Pediatrician Margaret Flowers speaks about protesting for change and her recent arrest in an effort to get a Medicare-for-all plan back on the table.

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