By Michael Capuano
In January the Supreme Court vastly altered the electoral landscape of 2010 with its 5-4 decision in Citizens United vs. FEC. The ruling eviscerated some important and long-standing campaign finance laws.
The court ruled that Congress cannot prohibit corporations from spending money on elections. Such prohibitions, according to the court, violate the First Amendment-guaranteed free speech rights of corporations. This long-awaited ruling essentially established that for the purposes of free speech, corporations should be treated as individuals. One of the immediate ramifications of this decision is that it will allow corporations to spend freely from their general treasury funds to influence elections.
The feckless Federal Election Commission has done it again. It is supposed to enforce campaign finance laws and protect elections and voters from the worst money abuses. Instead, it has tailored another loophole in the ban on unlimited “soft money” politicking — allowing Congressional candidates unrestricted war chests to try to influence the redrawing of electoral maps.
Redistricting litigation battles should be seen as having no bearing “in connection with” the elections that follow, the commission ludicrously maintained, using language from the McCain-Feingold soft money ban to undermine it. The F.E.C. would have us believe giving a ballplayer the power to shape the playing field has absolutely no effect on the outcome of the game.
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by Katrina Kuh
A number of corporate governance proposals have surfaced to prevent undue corporate influence of elections following Citizens United v. Federal Election Commission. My former colleague, Ciara Torres-Spelliscy, offers a proposal from the Brennan Center for Justice that would require inter alia shareholder approval for corporate political expenditures (in this same vein, see also The Shareholder Protection Act, H.R. 4537):
The U.S. should modify its securities laws to address corporate political expenditures post-Citizens United by (1) mandating that corporations obtain the consent of shareholders before making political expenditures, (2) requiring disclosure of political spending directly to shareholders and (3) holding corporate directors personally liable for violations of these policies.
My very limited experience with the use of shareholder resolutions to influence corporate behavior involves “green” shareholder resolutions, such as resolutions requiring companies to adopt the Valdez (CERES) Principles. This leads me to wonder, could shareholders propose/adopt a resolution that recommends that a corporation refrain from making political expenditures? And, if so, are such resolutions a useful (in terms of limiting corporate influence on elections) response to Citizens United?
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When the Supreme Court irresponsibly overturned a 60-year-old ban on spending by unions and corporations in political campaigns, Congress was faced with a choice. It could pass legislation purporting to overturn the decision, inviting another invalidation. Or it could work within the confines of the ruling to limit its negative consequences. In general, legislation proposed by Sen. Charles E. Schumer (D-N.Y.) and Rep. Chris Van Hollen (D-Md.) follows the second course, but it would still strike a blow against special-interest influence in elections.
The title of the DISCLOSE Act — which has been introduced in slightly different versions in the House and Senate — reflects its overriding purpose. That is to inform voters about the sources of advertisements that explicitly or implicitly advocate the election or defeat of a candidate or even mention a candidate during election season. Disclosure isn’t a panacea, but it allows voters to discern, and discount, the agenda behind an ad.
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THE SUPREME COURT’S ruling in the Citizens United campaign finance case opened a dangerous pathway for corporations to spend money in direct support of — or in opposition to — candidates for federal office. Under the decision, corporations — and labor unions — still can’t give money directly to federal candidates, but they can spend unlimited sums in independent expenditures for or against them. Even more dangerous, because of preexisting gaps in campaign disclosure laws, the money can be spent, in effect, anonymously. The entity spending the money — say, Americans for Really Good Government (ARGG) — would have to register with the Federal Election Commission and report its activities, but ARGG would not have to disclose its donors. So Corporation A or Labor Union B could give unlimited sums to ARGG to run ads going after Candidate C — and the public would have no clue. This troubling situation should be fixed in time for the next election.
Congressional Democrats, joined by two brave House Republicans — Michael N. Castle (Del.) and Walter B. Jones (N.C.) — introduced measures to blunt the impact of the Citizens United ruling. The legislation, crafted by Sen. Charles E. Schumer (D-N.Y.) and Rep. Chris Van Hollen (D-Md.), addresses the Citizens United ruling in two ways: first, by imposing limits on the kind of corporations that are allowed to try to influence elections, and second, by expanding disclosure rules. We have some concerns about the first part of the effort but enthusiastically support the second.
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by Adam Liptak
From the perspective of classical First Amendment theory, some cases are easy. The government should not censor speech without a really good reason, and people should be allowed to make up their own minds about what they see and hear.
On that view, it was unsurprising that the Supreme Court last month struck down a law that made it a crime to sell videos of dogfights. Or that in January it held unconstitutional a law that made it a crime to broadcast a documentary attacking Hillary Rodham Clinton, at least if shown during the election season and paid for by a corporation.
That second case, Citizens United v. Federal Election Commission, was in some ways the easier of the two, at least under a conception of the First Amendment that is particularly skeptical of government censorship of political speech.
But you can also think about Citizens United through the lens of election law. Then things get foggier.
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