The Supreme Court once said, “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”
Earlier this year, in Citizens United v. Federal Election Commission, the Court made clear that, according to its way of thinking, “people” includes “corporations.” Previous decisions by the Court suggested that limits on corporate financial contributions served the important purpose of preventing corruption in elections. Now, though, the Court distinction between money given directly to candidates’ campaigns and independent expenditures on advertising or, in this case, a movie, that took a position on a candidate. The Court reasoned that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” and concluded that the First Amendment does not allow the government to limit independent expenditures under most circumstances.
As the Supreme Court term ends, it’s timely to look back on one of the key decisions of the year. Some critics of the decision have said that it will undermine democracy by giving corporations unprecedented power; supporters say that it supports free speech. Six months after the Citizens United ruling, we are beginning to see signs of how significant this decision really is.
In Citizens United, the Supreme Court expanded the protection of the First Amendment to corporations that spend money in elections, as long as that money was not a direct contribution to a candidate’s campaign. Corporate spending on behalf of a candidate can no longer be limited in the interests of reducing corruption or the appearance of corruption. This expanded zone of protection offered by the First Amendment restricts laws passed by federal, state and local governments that were intended precisely to limit corporate involvement. Since the Citizens United decision, state courts and officials around the country have invalidated state statutes passed earlier with the intention of creating a buffer zone between business and government.
The Tennessee legislature passed a statute in 1972 that has prohibited use of any corporate funds in any elections. After Citizens United, Tennessee’s Attorney General concluded that the statute was unconstitutional and invalid. According to the Attorney General, corporate funds are now allowed in Tennessee elections as long as they are “independent expenditures,” not direct contributions to a candidate. The Attorney General’s ruling is based entirely on the Supreme Court decision in Citizens United; there was no need for the legislature to revisit the statute. The statute can no longer be enforced because its enforcement would violate the First Amendment as newly interpreted. The 2010 election cycle will be the first time in 38 years that corporate funds will be allowed in Tennessee campaigns.
The Ohio legislature passed a “revolving door statute” in 2005 with the explicit intention of preventing unethical practices by public employees and public officials and to promote, maintain, and bolster the public's confidence in the integrity of state government. The statute prohibited uncompensated lobbying by former members of the Ohio legislature for a year after leaving the assembly. The legislature was also concerned with unequal access to the legislature by outside organizations and concluded that a year waiting period would reduce the effect of such access. The federal district court concluded that the revolving door statute violated the First Amendment after Citizens United. Now, former members of the Ohio legislature can become lobbyists for corporate interests the day after leaving office. They no longer need to wait a year.
In 2002, the people of Colorado amended their state constitution to limit corporate influence in state elections. The 2002 amendments included a provision that made it unlawful for a corporation or labor organization to make expenditures expressly advocating the election or defeat of a candidate and a separate provision that made it unlawful for a corporation or a labor organization to provide funding for an electioneering communication. When asked by Governor Ritter to consider whether these provisions are a violation of the First Amendment after Citizens United, the top court in Colorado concluded that they were. The impact of Citizens United in Colorado is that, despite the clearly expressed desire of the people of the state to protect Colorado’s electoral politics from corporate influence and the passage of amendments to the Colorado constitution, corporations and labor organizations now can spend money to advocate directly for or against a candidate, and to fund campaign communications directly.
Sections of the San Diego Municipal Election Campaign Control Ordinance prohibited election spending by any entity that is not an individual person, imposed a $500 cap on spending by a single entity, and limited spending by candidates on their own behalf to 12 months or more before election day. A federal court in California concluded that those sections cannot be enforced after Citizens United because they violate the newly interpreted First Amendment. Now, corporate entities can spend money to influence San Diego elections; they can spend an unrestricted amount of money. Candidates can also spend their own money to campaign right up until the day of the election.
Whatever you think of the Citizens United ruling, it is important. The examples above serve to illustrate the domino effect such a decision can have on state and local policies throughout the country.
Paula Z. Segal is a second year student at City University of New York
School of Law and a Haywood Burns Fellow in Civil and Human Rights.
Before law school, she taught English to Speakers of Other Languages
and continues to develop materials for ESOL instructors to connect
language and life skills. She is also working with the New York Civil
Liberties Union to reduce the school to prison pipeline and coordinates
the CUNY Street Law Team, which brings the law to New York City high
school students and community groups. For more on the school to prison
pipeline, go to http://www.nyclu.org/issues/
(Photo by PoliticalActivityLaw.com.)