The Center for Competitive Politics submitted testimony today to the state Senate Judiciary Committee as it considers a bill to restrict the independent political speech of businesses in direct conflict with the Supreme Court’s ruling in Citizens United v. Federal Election Commission.
Testimony by Laura Renz, Director of Research & Government Relations for the Center for Competitive Politics, details how House Bill 4646 would severely limit West Virginians’ right to free speech.
The Citizens United decision allows corporations and unions to spend money from their general treasury on independent expenditures in support or opposition of a candidate. By their nature, independent expenditures are made without coordination with a candidate’s campaign, so much of the rationale behind campaign finance regulation—which is to prevent corruption or its appearance—does not apply in the case of independent expenditures, as the Supreme Court has consistently ruled that independent expenditures do not pose such a risk.
Rather, independent expenditures should be viewed as an important protected First Amendment right of an association of individuals (whether a corporation, union or nonprofit advocacy group), to speak out on important political issues and in support or opposition of their elected officials.
Before Citizens United, West Virginia banned independent expenditures by businesses and nonprofit corporations but allowed unlimited political expenditures by labor unions. Unions may also give $1,000 directly to candidates-the same limit as individuals-while corporations are still banned from giving directly to candidates after Citizens United.
This legislation fails to include unions in the new complex web of restrictions, and this omission presents an equal protection constitutional issue. Speaking to this issue, an additional clause in the Citizens United decision quotes earlier jurisprudence and states that “the worth of speech ‘does not depend upon the identity of its source, whether corporation, association, union, or individual.”
“This bill would, directly contrary to the recent Supreme Court decision, unfairly penalize corporations with such overly burdensome restrictions and requirements that the ultimate effect would be an unconstitutional chilling of speech,” Renz wrote in prepared testimony.
For example, requiring a majority of shareholder approval for election spending over $10,000 runs into several practical implementation issues, which render it a highly questionable and likely unconstitutional provision.
Equally troublesome, HB 4646 would severely restrict the First Amendment rights of in-state corporations while out-of-state corporations would still be able to fully enjoy their free speech rights while speaking out on issues of importance to West Virginians.
“It is clear that the intent of this bill is not to empower citizens, in any type of association, to speak out in campaigns, but rather to punish and criminalize certain types of speech by disfavored speakers: corporations,” Renz said.
