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Citizens United hearing: The semantics of ‘freaking out' and ‘controlling'
Published on March 10, 2010 06:49 PM
Today's Senate Judiciary Committee hearing on Citizens United v. Federal Election Commission contained a sober exchange of views on campaign finance jurisprudence—and a few fireworks.
CCP Chairman Brad Smith, the father-in-law of a Vermonter, unintentionally triggered the ire of Chairman Patrick Leahy of Vermont by characterizing the response of some Green Mountain State legislators to the Supreme Court's decision as "freaking out."
CCP to testify at FEC coordination hearing this week
Published on March 1, 2010 10:25 AM
The Federal Election Commission will hold a two-day hearing starting tomorrow on its coordinated communications rulemaking.
The FEC solicited supplemental comments after the Supreme Court's decision in Citizens United v. FEC shifted the regulatory landscape.
The Center for Competitive Politics submitted initial and supplemental comments. CCP vice president and co-founder Steve Hoersting will testify Wednesday.
A full witness list and submitted comments can be accessed via the FEC's press release on the hearing.
Video of last weeks ACS panel on Citizens United
Published on February 28, 2010
The Center for Competitive Politics covered the panel in two posts last week: "Lawyers offer mixed reviews of post-Citizens United leg. at ACS event" and "ACS panel features strong supporters of free political speech."
Opening brief filed in petition privacy case
Published on February 26, 2010
Protect Marriage Washington, represented by campaign finance superlawyer Jim Bopp, filed its brief in Doe v. Reed yesterday. The Supreme Court is scheduled to hear the petition privacy case April 28.
In Sept. 2009, a federal court prevented the release of the names of 138,500-some individuals who signed a petition for a ballot initiative to overturn a domestic-partnership law passed by the state legislature. Protect Marriage, which organized the petition effort, sued. Bopp argues that the experience of Washington activists and opponents of gay marriage in California's Proposition 8 campaign shows a record of harassment and intimidation targeted at people who are forced to register their personal information publicly with the state in order to exercise their First Amendment rights.
"Public disclosure laws have been used to harass and intimidate voters," Bopp said in a press release. "The First Amendment protects citizens engaged in political speech from being forced to reveal their identity to ensure that intimidation does not makes its way into the campaign toolbox. No one should have to endure death threats in order to stand up for what they believe in."
Colo. Supreme Court strikes down campaign finance restrictions
Published on February 25, 2010 02:53 PM
Earlier this week the Colorado Supreme Court struck down a controversial "pay-to-play" law. The Court ruled that Amendment 54, enacted by referendum in 2008 as a state constitutional amendment, violated the First Amendment to the U.S. Constitution.
Covington & Burling LLP issued an excellent analysis of the ruling today:
A diverse group of plaintiffs-including the chancellor of a state university, a board member of a nonprofit corporation, a labor union, and a local city council member-argued that this law violated the First Amendment by excessively burdening their right to political expression via political contributions. The Supreme Court held that significant portions of the law were unconstitutionally overbroad, including the complete ban (as opposed to a cap) upon contributions that reached to all levels of government regardless of a recipient's ability to influence contract awards or a recipient's relationship with the contractor.
The memo also considered broader implications for "pay-to-play" statutes in other jurisdictions:
Despite this sweeping defeat for Colorado's pay-to-play law, we expect that states will continue to enact and enforce pay-to-play laws. Statewide pay-to-play laws in Connecticut and New Jersey recently withstood First Amendment challenges on the basis that the interest in preventing corruption and its appearance was heightened in light of recent scandal in those states. Targeted pay-to-play laws in Louisiana (aimed at casinos) and Georgia (aimed at insurance companies) as well as federal pay-to-play laws and regulations that apply to government contractors, brokers, and dealers of municipal securities also have withstood constitutional challenge. The Supreme Court of Colorado's opinion reinforces the idea that states and courts may consider a properly crafted pay-to-play law to be an appropriate means to mitigate political corruption and quid pro quos in politics.
InvestmentNews reported on questions surrounding a pending Securities Exchange Commission pay-to-play rulemaking setting federal restrictions on contributions to state and local officials responsible for awarding bonding contracts.
Shredding the First Amendment?
Published on February 25, 2010 01:56 PM
The bloviating about the Citizens United decision has demonstrated, if anything, an extraordinarily weak understanding of the campaign finance landscape. Starting with the President's outlandish claims in his State of the Union Address, followed by the fear-mongering by congressmen (such as the ineffable Alan Grayson), we've been getting the feeling that the lambasting of the Supreme Court has a lot to do with nearing midterm elections and very little to do with the facts.
Cue Sen. Chris Dodd's reaction: Yesterday, he joined Sen. Tom Udall in introducing a constitutional amendment that allows Congress to regulate every avenue of campaign spending. This includes (but would not be limited to) the issue at hand in Citizens United: independent expenditures—spending by individuals or groups, not coordinated with candidates, to speak out about candidates in our elections.
Lawyers offer mixed reviews of post-Citizens United leg. at ACS event
Published on February 25, 2010 01:55 AM
The campaign finance experts assembled at the American Constitution Society's panel discussion about Citizens United v. Federal Election Commission seemed conflicted on the prospects for a congressional response.
BNA: Money & Politics Report focused on this angle in its report today ($):
Top election lawyers were sharply divided Feb. 24 in assessing the prospects for congressional legislation responding to the Supreme Court's latest campaign finance decision in Citizens United v. Federal Election Commission (2683 Money & Politics Report, 1/22/10)... lawyers representing business interests said Congress faced thorny practical and constitutional issues and expressed doubts that legislators would be able to agree on proposals responding to the court's ruling.
Meanwhile, lawyers for unions, liberal groups, and Democrats said they thought there was a good chance that new laws boosting disclosure of campaign-related spending and limiting campaigning by foreign-owned companies would be adopted in the wake of the court ruling.
Legal Times also covered the event.
ACS panel features strong supporters of free political speech
Published on February 24, 2010 05:03 PM
The American Constitution Society, the leading liberal legal organization, hosted a remarkable and informative panel on the impact of Citizens United v. Federal Election Commission today at the National Press Club in Washington, D.C.
Notably, the panel included four defenders of the Court's majority opinion (in whole or in part) who spoke from a real-word perspective: experience as campaign finance lawyers, FEC staffers and congressional committee aides. The First Amendment Four - Jan Baran of Wiley Rein; Laurence Gold of AFL-CIO and Lichtman, Trister & Ross; James Portnoy of Kraft Foods and Joseph Sandler of Sandler, Reiff & Young - dominated the discussion by explaining why the Supreme Court affirmed long-standing First Amendment jurisprudence in Citizens United and why the decision will not lead citizens like lemmings off a cliff onto a rock-bed of corporate-controlled politics.
Legislative and legal developments post-Citizens United
Published on February 23, 2010 02:59 PM
At the federal level, Sen. Chuck Schumer and Rep. Chris Van Hollen have indicated that they plan to release a bill this week to pare back free speech protections granted by Citizens United v. Federal Election Commission. CCP's press release on the legislative framework released by Schumer and Van Hollen is here.
Several state legislatures are examining bills addressing Citizens United. Some would simply conform state laws and constitutions to reflect the Supreme Court's ruling that they government may not prohibit corporations, unions and nonprofit advocacy groups from engaging in independent speech advocating for or against candidates.
The National Conference of State Legislatures posted a round-up of states planning or announcing responses to Citizens United. NCSL also includes a handy summary of states that had pre-Citizens United bans on corporate or union independent expenditures:
- Connecticut, North Dakota, Ohio, Pennsylvania, West Virginia — Legislators and state officials are reviewing the case and have not yet decided how to proceed.
- Alaska — The chair of the Senate Judiciary Committee wants the committee to introduce a bill that would require disclosure of corporate spending on ads.
- Arizona — SB 1444, introduced on February 16, 2010, would require corporations and labor unions that make independent expenditures in candidate campaigns to register and file disclosure reports.
- Colorado — Governor Bill Ritter has asked the state's Supreme Sourt to evaluate the constitutionality of two provisions of the state's constitution that appear to be directly affected by Citizens United. Also, the state Republican Party has announced its intention to file suit against Colorado's law. It is possible that the suit could challenge a broader scope of the law than the two sections that are affected by Citizens United.
- Iowa — The director of the Ethics and Campaign Disclosure Board has sent an e-mail to legislators telling them that Citizens United effectively overturns Iowa law. SF 2354, introduced on February 15, 2010, requires corporations to obtain permission from a majority of their shareholders prior to making an independent expenditure, requires corporations to report their independent expenditures to the Ethics and Campaign Finance Disclosure Board, prohibits coordination between candidates and corporations, and requires certain attributions on corporate-funded advertisements.
- Maryland — HB 616, introduced on February 3, 2010, would require stockholder approval and public disclosure of corporate independent expenditures in excess of $10,000. HB 690 and SB 691 would prohibit government contractors from making independent expenditures. HB 986 and SB 570 would require board of director and stockholder approval for corporate independent expenditures, and would prohibit the distribution of material that is not true. HB 1029 and SB 543 would establish disclosure requirements for corporate independent expenditures. SB 601 would prohibit corporate contributions to candidates and corporate-funded independent expenditures.
- Michigan — The secretary of state has posted a detailed description of how Citizens United affects the state, including an FAQ section.
- Minnesota — SF 2353, introduced on February 4, 2010, would repeal the ban on independent expenditures by corporations.
- Montana — The attorney general has said the state's ban on corporate expenditures will stay in place until it is challenged.
- North Carolina — The executive director of the State Board of elections has said that the law appears to be unenforceable, but they are still working to understand the full meaning of the decision.
- Oklahoma — The Ethics Commission is working on amendments to change and remove the relevant portions of state rules.
- South Dakota — SB 165, introduced on February 1, 2010, would prohibit corporations from making political expenditures without shareholder approval.
- Wisconsin — The Senate passed SB 43 just two days before the release of the Citizens United decision. This bill would ban corporate and union funding of electioneering bans and require greater disclosure. The bill's sponsors say they are hoping to salvage the disclosure portions of the bill. Also, the Government Accountability Board is considering rules that would require greater disclosure. SB 540, introduced February 17, 2010, repeals Wisconsin's ban on corporate independent expenditures. It also requires a corporation to file documentation of a vote of shareholders taken within the past two years approving campaign expenditures before making such an expenditure.
- Wyoming — HB 68, which would repeal the ban on independent expenditures by corporations, is pending in the Legislature.
New York Times endorses First Amendment right for corporations (but only in defense of terrorists)
Published on February 23, 2010
Corporations, we are regularly told by the so-called campaign finance "reform" community, are not people, and therefore do not enjoy First Amendment protections. In the wake of Citizens United, the gnashing of teeth and rending of garments from "reformers" has grown to hysterical levels.
The New York Times has been among those leading the mob chanting "corporations aren't people," noting in their initial editorial response to the Citizens United decision that "Most wrongheaded of all is [the Court's] insistence that corporations are just like people and entitled to the same First Amendment rights."
Today the Times appears to reverse course on the First Amendment rights of corporations, although it's unlikely it realizes it has done so. From today's New York Times:
On Tuesday, the [Supreme C]ourt hears arguments in Holder v. Humanitarian Law Project. The Humanitarian Law Project... want[s] to provide training in peaceful dispute resolution to the Kurdistan Workers' Party, which has waged a separatist guerrilla campaign against the Turkish government, and to advise the group on how to petition the United Nations and other international organizations for relief...
The Kurdish group...[is] designated as foreign terrorist organizations by the United States, and the plaintiffs fear they could be prosecuted under the federal material support law and sentenced to as much as 15 years in prison.
The law prohibits giving not only weapons and money, but also less concrete support, like advice and "service." The plaintiffs argue that these prohibitions go too far, infringing on their rights to free speech and association...
There needs to be strong protection for a core area of protected speech and advocacy. Americans should be able to make arguments to a court on the behalf of terrorist groups...
The varied 'progressive' reactions to Citizens United
Published on February 21, 2010 08:00 PM
The importance of First Amendment political rights has long been an issue that splits across party lines and ideologies. The Supreme Court's January ruling in Citizens United v. Federal Election Commission divided the progressive movement in America.
Prominent liberals ranging from ACLU stalwarts to some labor union attorneys to constitutional litigators like Salon.com's Glenn Greenwald praised the Court's ruling as a victory for free speech against government censorship. Most other prominent left-of-center folks, including most elected Democrats, railed against the decision with fury—and they were the loudest and most prominent after Citizens United.
What's behind this split?
Will Wilkinson explains the dynamic in his most recent column in The Week magazine. An excerpt:
When the Supreme Court overturned campaign finance law in Citizens United v. Federal Election Commission last month, civil libertarians and free-speech enthusiasts applauded. The ruling threw out limits on corporate "independent expenditures" on campaign advertising - the case in point being a hatchet-job documentary on Hillary Clinton produced by a non-profit corporation called Citizens United. Government censorship of political documentaries certainly seems to violate the very sinews of the First Amendment. "Congress shall make no law ... abridging the freedom of speech" isn't very ambiguous, after all.
So I was caught off-guard when MSNBC's Keith Olbermann called the Citizens United decision "a Supreme Court-sanctioned murder of what little democracy is left in this democracy." When others followed with similar howls of wounded outrage, I became aware of a gap in my understanding of the progressive Left. I suddenly realized that free speech for big business is to the Left what due process for alleged terrorists is to the Right: an unbearable burden that threatens freedom itself.
For another interesting insight into the doctrinarian divide among the American Constitution Society crowd, listen to a conservation between Harvard Law Professor Larry Lessig and Greenwald with The Young Turks:
SLAPPed! Coming to a Courtroom Near You
Published on February 19, 2010
Samantha Brown
The Center for Competitive Politics is pleased to welcome this guest blog post by Samantha Brown of the Federal Anti-SLAPP Project
Politicians Behaving Badly
I gave (my lawyers) a pile of money, and said go get ‘em.
— Local Michigan official, commenting on a lawsuit he brought against the citizen who organized the recall petition against him.
Right now, in Michigan, some interesting events are unfolding in local politics. In September, police stopped Flushing Township Supervisor Don Schwieman for drunk driving. After refusing to stop immediately, he was ordered out of the car at gunpoint, when police discovered he was wearing only inside-out, backwards shorts. The police report indicated that he falsely identified himself as the chief of police and that police found a commemorative police badge in his glove compartment. The report also indicated that Schwieman's blood alcohol level was three times the legal limit.
The next morning, Schwieman pleaded not guilty to the charges, and some Flushing residents, already highly dissatisfied with direction their local government was taking, decided enough was enough. Calling the entire incident "embarrassing," Flushing Township resident Gerry Wood initiated a petition to recall Schwieman.
Schwieman was displeased at the recall, but at the time it was filed, asserted that he had "no intention of reading the recall petition's language." A couple weeks later, at the end of October, he became convinced that the recall would be successful. A few weeks after that, he must have found time to read the petition, because in December, he decided to sue Wood for libel and slander. For good measure, he also sued the Genesee County Clerk and Election Commission, for "aiding" in said slander.
Poorly worded poll on Citizens United decision
Published on February 17, 2010 11:00 AM
ABC News and the Washington Post today released polling results on the public response to the Supreme Court's Citizens United decision.The results, at first glance, don't show much sympathy and understanding among the general public for the First Amendment and unfettered political speech, but a closer look reveals that the two questions asked perhaps weren't worded optimally.
The first question is somewhat leading and lacking context:
...do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections?
80 percent of those polled said they opposed the ruling.
On its face, not the worst way to ask to the question. But specifying "corporations and unions" as being able to "spend as much money as they want to help political candidates win elections" seems designed to conjure images of powerful interests pouring nearly-infinite amounts of money into campaigns to elect politicians who will bend to their will.
CCP's Hoersting discusses post-Citizens United proposals
Published on February 13, 2010 07:11 AM
Center for Competitive Politics vice president Steve Hoersting appeared on CNBC yesterday to discuss the post-Citizens United legislative proposals with Common Cause's Bob Edgar. The segment is below:
Reaction to the congressional proposals to thwart Citizens United v. FEC
Published on February 11, 2010 04:46 PM
Sen. Chuck Schumer and Rep. Chris Van Hollen announced a legislative framework for post-Citizens United legislation in a press conference call Thursday. The Center for Competitive Politics press release on the development is here:
"The First Amendment should not be plowed over because of an inconvenient political storm," said Bradley A. Smith, CCP's chairman and a former FEC chairman. "This is a cynical attempt to brush aside constitutional concerns because of a short-term perception of partisan gain."
CCP raised several policy and constitutional questions with the bill's announced provisions on "foreign" involvement, disclosure and government contractor restrictions.
Another organization—the Organization for International Investment, which represents U.S. subsidiaries—released a critical statement:
"We can all agree that foreigners should not be allowed to influence our political system—and we support further improving upon law that would restrict them from doing so. But creating a law that redefines the U.S. subsidiaries of companies based abroad that have insourced more than five million American jobs as a foreign company, simply does not make sense in today's global economy," said Nancy McLernon, President & CEO of the Organization for International Investment (OFII). "If policymakers start automatically equating "insourcing" companies with being foreign in other areas of law, it will have a substantial impact on the ability for these firms to do business, create American jobs and increase investment in the U.S."
Under current law, election spending by foreign nationals—including foreign governments, corporations, and individuals—is already prohibited by the Federal Election Campaign Act. That prohibition is unaffected by the ruling in Citizens United. The Federal Election Campaign Act prohibits U.S. subsidiaries of foreign companies from using funds from their foreign parent company for election-related spending. Additionally, foreign nationals, whether at the U.S. subsidiaries or at the international parents, may not participate in decisions about political expenditures in the United States.
The Wall Street Journal/Dow Jones, Financial Times, CNN, CBS News, Politico, The Hill (and here), Roll Call/CQ, Bloomberg, National Journal, Hotline and The Washington Independent all have reports on the Schumer-Van Hollen proposals.
Justice Thomas Comments on Ben Tillman, the Forgotten Founding Father of Campaign Finance Reform
Published on February 4, 2010
Earlier this week, Justice Clarence Thomas, speaking at Stetson Law School in Florida, defended the Court's decision in Citizens United v. FEC, which struck down the Tillman Act, banning corporate spending in political campaigns, on First Amendment grounds. Said Thomas:
“Go back and read why Tillman introduced that legislation. Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”
That made us decide it might be a timely moment to recirculate our post from 2006 on "Ben Tillman, Forgotten Founding Father of Reform." Read about the despicable Tillman below the fold.
Smith on Citizens United in SCOTUSblog
Published on February 2, 2010 07:07 PM
SCOTUSblog invited CCP Chairman Brad Smith to comment on the Supreme Court's ruling in Citizens United v. Federal Election Commission. His piece, "Citizens United, Shareholder Rights, and Free Speech: Restoring the Primacy of Politics to the First Amendment," is split into two parts.
Part I addresses the Court's jurisprudence in Citizens United, and responds to Professor Laurence Tribe's SCOTUSblog commentary critiquing the Court's ruling.
Part II details concerns about congressional regulations proposed after Citizens United on shareholder governance of corporate political expenditures and restrictions on domestic subsidiaries of foreign companies.
CCP witnesses engage Senators on campaign finance options
Published on February 2, 2010 04:32 PM
Center for Competitive Politics vice president Steve Hoersting and CCP board member Allison Hayward, a professor of law at George Mason University, testified Tuesday morning before the Senate Rules & Administration Committee.
A webcast of the hearing is available at the committee's website:
Hoersting focused his testimony on some of the policy options Congress could consider that are likely to pass constitutional muster, such as freeing the party committees and candidates from the remaining statutory burdens of McCain-Feingold. Doing so would shift more money from the unregulated independent groups into candidates and parties. Hoersting's prepared remarks are here.
CCP's Hoersting and Hayward to testify at post-Citizens United Senate hearing
Published on January 31, 2010
The U.S. Senate Committee on Rules & Administration has posted the witness list for Tuesday's hearing on potential legislative responses to the U.S. Supreme Court's ruling in Citizens United v. Federal Election Commission.
Center for Competitive Politics (CCP) vice president Steve Hoersting and CCP board member Allison Hayward, a professor of law at George Mason University, will testify at the subtly-titled hearing, "Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections."
The hearing starts at 10 a.m. Tues., Feb. 2. A full witness list and any updates are available at the committee's website.
Hoersting on CNBC to discuss foreign corps. and Citizens United
Published on January 28, 2010 03:04 PM
Center for Competitive Politics Vice President Steve Hoersting will appear on CNBC's "Street Signs" for a 2:20 p.m. segment on the Supreme Court's ruling in Citizens United v. Federal Election Commission and its meaning for foreign corporation political activity.
Josh Israel, a reporter for the Center for Public Integrity, will join Steve in a conversation with anchor Erin Burnett.
President Barack Obama mischaracterized the Court's holding in Citizens United in an uncomfortable moment of last night's State of the Union address. Justice Samuel Alito, who joined the majority opinion, said "not true," when Obama remarked that foreign corporations could "spend without limit in our elections."
For more background on this issue, read CCP's press statement on President Obama's comments.
