Citizens United v. FEC

  • June 24, 2011

    In a piece for the Boston Review, Stanford University law school professor Pamela S. Karlan examines the Supreme Court’s changing view on the rights of corporations, concluding that the ruling in Citizens United v. FEC should not end the debate over the “constitutionality” of campaign finance regulation.

    Karlan, also an ACS Board member, notes that the Supreme Court a long, long time ago found that corporations “are entitled to constitutional protection, but not the same as human beings.”

    And in recent times under direction of a conservative Supreme bloc, Karlan notes that “when it comes to a willingness to restrict constitutional rights in the name of confidence in the democratic process, the Court’s decisions show a troubling and puzzling asymmetry in favor of corporations.”

    One of those areas of favoring corporate interests, of course, centers on campaign finance regulation. In Citizens United, the conservative high court bloc overturned precedent that found a compelling government interest in “preventing ‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.’”

    Karlan points to a “better argument” for limiting outlandish corporate spending on elections.

    She writes:

    Under current law the actual owners of corporations – their shareholders – have little say in how corporations make decisions in the political arena. That corporate managers might spend corporate funds not to maximize the shareholders’ welfare but to maximize their own is a very real danger. Many shares are owned by mutual funds and pension funds that in turn are owned by individual citizens who often have political convictions that go beyond maximizing the profitability of the corporations whose stock forms part of their retirement savings. What is more, those political commitments may be sharply at odds with the economic interests of the corporate managers who are making decisions about corporate political spending. The law should not force citizens to forgo beneficial investments in order to avoid subsidizing their political opponents.

  • June 21, 2011

    For some of the only, or at least the best, on-spot coverage of the ACS 10th Anniversary National Convention see Jessica Jackson's coverage on the Harvard Law & Policy Review's HLPR Blog.

    Jackson, a student ACS Board member, writes for HLPR, the official journal of ACS, on:

    AG Holder's opening night speech;

    Rep. Bobby Scott’s comments, as well as those by other panelists, regarding the nation's crime-reduction strategy and its "collateral consequences," that impede rehabilitation; and

    Discussion of the Roberts Court's track record on free speech issues, obviously including its opinion in Citizens United.

    ACSblog provides coverage of the convention here and here and video here. Additional video and coverage of the ACS 10th Anniversary National Convention is forthcoming to ACSblog.

  • 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.