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After Citizens United
Supreme Court
Comment
February 19, 2010

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.

Background on Citizens United v. FEC

On the January 29, 2010 edition of the JOURNAL legal scholars Monica Youn and Zephyr Teachout laid out their concerns about the ruling. Watch that interview and get more information about the case and ruling below.

>>View the interview with Monica Youn and Zephyr Teachout

Citizens United v. The Federal Election Commission grew from a limited question about a political documentary to a broad challenge to the government's right to restrict corporations from spending money to support or oppose political candidates.

Encompassing questions on First Amendment rights, the power of corporations and the influence of money on political elections, the case has created an assortment of strange bedfellows. Conservatives and liberals appear on both sides, either to defend the government's right to restrict corporate political advocacy or, on the other side, to argue that such regulations are a violation of the First Amendment.

When the court first announced it would be reconsidering the case last September, Bill Moyers spoke with two prominent lawyers involved in the case: Trevor Potter, president and general counsel of The Campaign Legal Center, who submitted a brief to the court in support of the F.E.C.; and Floyd Abrams, a First Amendment attorney, who argued before the court on behalf of Citizens United.

>>View the interview with Trevor Potter and Floyd Abrams here.

At the center of this case is a 2008 political documentary, HILLARY: THE MOVIE, which sought to portray then presidential contender Hillary Clinton as a dangerous threat to the United States. The Federal Election Commission considered it an electioneering communication, funded by a corporation, and therefore subject to McCain-Feingold restrictions.

When the case appeared before the Supreme Court last session, in early 2009, the question was only whether HILLARY: THE MOVIE was an electioneering communication, but the court broadened the case in the re-argument. According to THE NEW YORK TIMES' Adam Liptik, "some of the broader issues implicated by the case were only glancingly discussed in the first round of briefs, and some justices may have felt reluctant to take a major step without fuller consideration." In its January 21 decision, the court overruled two previous decisions that upheld the government's right to limit certain types of corporate political advocacy — the 1990 decision in Austin v. Michigan State Chamber of Commerce, which upheld a Michigan state law, and the 2003 decision in McConnell v. Federal Election Commission, which upheld McCain-Feingold.

>>Read a selection of documents related the case.

>>Learn more about the history of campaign finance regulation.

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.

Disclosure

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.

Shareholder's Rights

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).

Foreign Influence

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.

Public Financing

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.

Constitutional Amendments

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."
References and Reading:

The Sunlight Foundation
The Sunlight Foundation is devoted to making government more transparent and accountable.

The James Madison Center
The James Madison Center, co-founded by attorney James Bopp, Jr. is dedicated to undoing campaign finance regulations, which it views as an unlawful restriction on free speech.

"Legislators act to limit corporate political spending"
By Julie Bykowicz, THE BALTIMORE SUN, January 27, 2010.

Senator Jamie Raskin's sponsored bills
Bills sponsored by Senator Jamie Raskin in the Maryland legislature.

Public Campaign
Public Campaign advocates for publicly funded elections.

Fix Congress First
Fix Congress First is the new Web site from Lawrence Lessig's organization, Change Congress.

The CATO institute: Campaign Finance
The CATO institute offers research into campaign finances from a libertarian perspective.

Letter to Senator Charles Schumer
By Michael Waldman and Susan Liss. The Brennan Center for Justice at NYU's recommended reforms in the wake of the Citizens United decision.

Free Speech for People
A campaign to amend the constitution to protect the free speech of people, but not corporations.

Move To Amend
A campaign to amend the constitution to: "Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights. Guarantee the right to vote and to participate, and to have our votes and participation count. Protect local communities, their economies, and democracies against illegitimate 'preemption' actions by global, national, and state governments."

Documents Related to the Case

Citizens United v. the Federal Elections Commission
The Syllabus of the decision, along with links to the rest of the decision, available in html and PDF.

Further Analysis of the Case

"No Time To Wait for the Effects of Citizens United"
By Mimi Marziani, BRENNAN CENTER FOR JUSTICE, January 22, 2010.

"What the Supreme Court Got Right"
By Glenn Greenwald, SALON.COM, January 22, 2010.

"Newsflash: First Amendment Upheld"
By Bradley A. Smith, WALL STREET JOURNAL, January 22, 2010.

"Money Grubbers"
By Richard L. Hasen, SLATE, January 21, 2010.

"The Supreme Court Rejects a Limit on Corporate-Funded Campaign Speech"
By Michael C. Dorf, FINDLAW, January 25, 2010.

History of Campaign Finance Reform

Historical background of the Federal Election Commission.
Published by the Federal Election Commission. A very brief overview of relevant campaign finance laws, their aims, and the creation of the FEC.

"A Sisyphean History of Campaign Finance Reform"
by Jack Beatty, THE ATLANTIC, July 3, 2007. A brief history of reform efforts, based on Justice David Souter's dissenting opinion in the 2007 case Federal Election Commission v. Wisconsin Right to Life.

Court Challenges to campaign finance laws
Provided by Hoover Institution; covers major court cases starting with Buckley v. Valeo (1976), which challenged the Federal Election Campaign Act, through McConnel v. FEC (2003).

Also This Week:
JUSTICE FOR SALE
Bill Moyers Journal takes a hard look at how campaign cash in judicial races may sway America's courts. The Journal revisits the 1999 FRONTLINE special "Justice for Sale" which looked at the growing concern - even among Supreme Court justices themselves - that campaign contributions may be corrupting the judicial process.

JEFFREY TOOBIN
Legal analyst and journalist Jeffrey Toobin talks about the relationship between big money and judicial elections today.

AFTER CITIZENS UNITED V. FEC
Read the rulings, get analysis, find out what legal actions are underway and join the debate.

>>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.

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