Citizens United v. FEC

  • June 9, 2011
    Guest Post

    By Rick Hasen, Visiting Professor, University of California, Irvine School of Law and the author of Election Law Blog.


    When President Obama in his 2010 State of the Union speech criticized the Supreme Court’s decision in Citizens United, he got a lot of conservative flak. The President had said, among other things, that the 5-4 decision recognizing that corporations have a First Amendment right to spend money in federal elections overturned a 100-year-old campaign finance law.

    Thus, Bill Maurer, writing in the Weekly Standard, said:

    President Obama has been the most notable proponent of this myth. In the State of the Union he said that Citizens United “reversed a century of law that I believe will open the floodgates for special interests .  .  . to spend without limit in our elections.” In response, Justice Alito was seen shaking his head and mouthing the words “not true.” Alito was right. 

    While federal law has indeed prohibited corporations from directly contributing to federal candidates since 1907, that portion of the law was not at issue in Citizens United. It remains the law of the land. Direct corporate contributions to candidates are still banned. 

    It was a fair point, though there is some uncertainty as to how the 1907 law was interpreted before the 1940s, when it expressly banned not just corporate contributions to candidates but corporate and labor union independent spending as well. But now a federal district judge has overturned the direct contribution ban too, and done so against controlling Supreme Court precedent to the contrary.

  • May 16, 2011

    Citing a recent action by the Securities and Exchange Commission (SEC), John C. Bogle writes in a column for The New York Times, “Shareholders – not self-interested corporate managers – should, and can, decide policies on corporate political contributions.” 

    Earlier this year, the SEC issued a decision that shareholders of Home Depot would have the chance to vote on a measure regarding the corporation’s political expenditures. “This action provides shareholders with greater protections when corporations spend their money, in the form of general corporate funds, on politics,” the March 25 SEC letter states. The SEC action was prompted by Home Depot’s effort to keep shareholders from voting this June on the political expenditure resolution.

    Bogle, founder of the Vanguard Group, writes:

    What makes this strengthening of shareholder rights particularly important is that over the past 50 years control of corporate America has shifted from individual stockholders to institutional stockholders. But these institutional investors have been unwilling to challenge political activities by corporate boards, even when those activities are not in their shareholders’ interests.

    Noting the high court’s opinion in Citizens United v. FEC, which found that corporations have First Amendment rights to freely funnel expenditures into political campaigns, Bogle maintains that institutional investors have “an obligation to act.”

    He continues:

    For all its faults, the Citizens United ruling upheld the disclosure requirements of the campaign financing law, and I had hoped full disclosure might limit corporate contributions. But in fact, corporations are able to exploit provisions in the law governing nonprofit groups to make lavish political contributions without disclosure, making it easier than ever for cash to subvert our political system. Action to limit contributions at the corporate level is therefore urgent.

     

  • April 29, 2011

    In what is being billed as the first direct challenge to the Supreme Court’s 2010 Citizens United v. FEC opinion, a coalition of groups has come together to help restore Montana’s century-old law against corporate politicking.

    Last fall, a Montana judge invalidated the state’s 1912 Corrupt Practices Act, which bans corporations from spending on elections, citing the high court’s Citizens United ruling. Citizens United struck down decades of precedent upholding campaign finance regulations, finding that corporations have free speech rights to funnel corporate dollars into campaign coffers. As noted in this blog post, the Koch brothers, head of Koch industries and prime funders of Tea Party activities, are taking advantage of Citizens United to push their employees to vote for far-right candidates.

    The Montana Attorney General has appealed the decision to the state’s highest court, and today Free Speech for People, a national campaign to overturn Citizens United, along with national and Montana business networks, lodged an amicus brief urging the restoration of the Montana campaign finance law.

    The friend-of-the-court brief in Western Tradition Partnership, Inc. v. State of Montana blasts the Citizens Union opinion as “an extreme extension of an erroneous corporate rights doctrine that has eroded the First Amendment and the Constitution for the past 30 years.” The brief adds that Citizens United “is contrary not only to our republic principles of government, but also to American principles of free and fair commerce among free people and the States.”

    Jeff Clements, co-founder and general counsel of Free Speech for People and author of the amicus brief, said in a press statement, “Corporations are not people. The Framers understood that. The First Amendment and the Constitution is for the people. We are proud to stand today with the State of Montana to vindicate the Framers’ intent and to defend our democracy.”

    See the coalition’s amicus brief here.

    Clements is also author of the ACS Issue Brief, “Beyond Citizens United v. FEC: Re-Examining Corporate Rights.” Clements also talked with ACSblog about Free Speech for People’s effort to advance a constitutional amendment to overturn Citizens United. Watch his interview here.

  • April 29, 2011

    The billionaire brothers, who head of Koch Industries and finance Tea Party activities, campaigns to crush unions and undercut environmental regulations, are, not surprisingly, quickly taking advantage of the Supreme Court’s opinion in Citizens United v. FEC to influence the way their employees vote.

    In a piece for The Nation, Mark Ames and Mike Elk report on recent efforts of Charles and David Koch to sway their workers during the midterm elections. The magazine highlights a “Koch Industries election packet,” sent to most of the company’s workers rife with “alarmist right-wing propaganda.” The packet contained a list of candidates favored by the brothers as well a newsletter with an editorial trumpeting “Tea Party themes,”  and an article portraying an out-of-control federal government determined to muzzle the free speech of the brothers.

    Ames and Elk, however, write that “the strangest and most disturbing article of all comes from the head of Koch Industries himself, Charles Koch, who offers an election-year history lesson to his employees.” Part of that history includes that claim that President Warren G. Harding helped lead “one of the most prosperous [eras] in U.S. history.” Koch said Harding’s slashing of taxes and federal spending were what helped make him such a wonderful president.

    Marquette University law school professor Paul M. Secunda told The Nation, “Before Citizens United, federal election law allowed a company like Koch Industries to talk to officers and shareholders about whom to vote for, but not to talk with employees about whom to vote for. Now companies like Koch Industries are free to send out newsletters persuading their employees how to vote. They can even intimidate their employees into voting for their candidates.”

  • April 19, 2011

    The Tea Party and other far-right activists are successfully shaping their image as a “constitutional movement” because they connect with “populist sentiment,” writes The New Republic’s Legal Affairs Editor Jeffrey Rosen.

    “Enthusiasm about constitutional amendments generally tracks closely with populist sentiment,” Rosen, a law professor at George Washington University law school, writes. “Simply put, populist movements tend to expend energy on constitutional amendments; those that are more elite-driven do not.”

    Rosen notes a slew of amendments that have been, and are being, pushed by the right-wing. Those include Tea Party-backed amendments to greatly restrict the power of the federal government and Religious Right-backed constitutional amendments aimed out curtailing reproductive rights and banning same-sex marriage.

    Rosen concludes that “the lesson here for liberals isn’t necessarily about passing constitutional amendments. It’s that, in order to have any success as a constitutional movement, they need to find a way to reconnect with populism.”

    One way to reconnect is to better promote objections to a government that is “heavily influenced by Wall Street.” Citing Harvard Law School professor Lawrence Lessig, progressives do share some common ground with elements of the Tea Party, a distrust of “corporate control.”

    At an ACS event earlier this year concerning corporate influence on the courts, former New York Gov. Eliot Spitzer urged progressives to become far more engaged in the debate over the Constitution, to fight back against Tea Party activists’ claims that they have the market cornered on constitutional scholarship.

    Spitzer said, “The Constitution is a wildly progressive document. It is an amazing thing. We all appreciate that. But our failure to stand up and defend it permits them to claim it.”

    He continued, “This is a document that reflects society. It pains me that we are losing the Constitution because we are unwilling to stand up and defend what it really is. We have to do that.”

    Some progressives have already taken to the challenge of fighting corporate influence on government. Jeffrey Clements, an ACS Issue Brief author on campaign finance regulation and corporate rights, has helped found a group dedicated to advancing a constitutional amendment that would reign in the ability of corporations to spend freely on elections.