State of Elections

William & Mary Law School | Election Law Society

Citizens United

Weekly Wrap Up

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Every week, State of Elections brings you the latest news in state election law.

– New Orleans has experienced a record number of early voters for its municipal election.  About 16,600 ballots have been cast already, compared to 12,850 early votes in the 2008 presidential election.  Experts speculate that the rise in early voting is because the election is scheduled for this Saturday, just one day before the Saints play in the Superbowl.

– A measure that would allow overseas voters to send their ballots by email has passed the Washington House, and is headed to that state’s Senate.

– A judge in New Jersey has ordered a panel of experts to evaluate the security of New Jersey’s 11,000 voting machines.  Some have criticized the ruling for not requiring that the machines be retrofitted to produce a paper trail.

– A corporation has announced its candidacy for Congress!  Murray Hill Inc. plans on filing to run in the Republican primary in Maryland’s 8th Congressional District.  Feeling liberated by the Supreme Court’s decision in Citizens United, the corporation has decided to take the logical next step in their struggle for equal rights.  According to Murray Hill “It’s our democracy.  We bought it, we paid for it, and we’re going to keep it.”

– The California governor’s race has taken a bizarre turn.  Steve Poizner, a Republican candidate, has accused his rival Republican Meg Whitman of trying to bully him out of the race.   Poizner claims that an e-mail sent to him from Whitman’s office violates four federal and state election laws.  A copy of Poizner’s complaint, including a copy of the email, can be found here.

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Citizens United and Voluntary Associations

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This article was originally posted as a comment to this post on The Volokh Conspiracy. It is reposted here with the permission of the author, William Van Alstyne.

Despite the cogency of observations by several who have commented on the 5/4 decision in this past week’s SCOTUS case, voiding the century-old act of Congress forbidding ordinary business corporations from spending treasury funds to endorse or oppose candidates for national elective office, my own view is that the dissenting opinion by Justice Stevens on balance had the better of the First Amendment argument. The existing restrictions on campaign finance have been even-handed, insofar as (for example) the United Auto Workers (the UAW) is subject to the same limitation as General Motors itself. Each, in turn, is equally free to establish Political Action Committees (PACS) which may indeed solicit contributions from willing parties (shareholders in the one case, workers in the other) whether to be spent directly to advance the candidacies of particular favored candidates or to advertise for the defeat of others. Funds raised by PACS (whether corporate or labor union PACS) are provided willingly, as are funds contributed by members of the ACLU, Young Socialists, Vegetarians, NARAL, or the Moral Majority. Each of these organizations is properly treated as a First Amendment voluntary association, even as is the NAACP.

But, there has been no reason to regard a GM shareholder likewise, whether individually or institutionally, nor a GM employee likewise – insofar as his or her UAW dues payments to the union are not voluntary but, instead, made as a condition of being employed by GM (pursuant to a collective bargaining contract secured by the UAW via the National Labor Relations Act). I frankly thought that the dissent in this case had the better of it, consistent with pre-existing First Amendment principles (as well as century-old case law as well). The Court’s 5/4 decision is certainly no great calamity (nor is its likely extension in the current Supreme Court term to the states via the Fourteenth Amendment). I think, however, there is more to regret than celebrate in the undoing of the “balance” previously struck.

William Van Alstyne is a noted First Amendment scholar and professor at William and Mary Law School.

Permalink: http://stateofelections.pages.wm.edu/2010/01/29/citizens-united-and-voluntary-associations

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On the Regulation of Corporate Political Speech

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This article was originally posted November 16th, 2009 on the blog of the William and Mary Chapter of  the American Constitution Society.  It is reposted with the permission of ACS and the author, Professor Alan Meese.

The Blog of the William and Mary Chapter of the American Constitution Society recently posted an article reporting on and summarizing William Van Alstyne’s November 11 lecture regarding Citizens United v. Federal Election Commission, currently pending before the Supreme Court. At the end of the last term, the Court ordered reargument in the case, asking the parties corporate speechto address whether, for instance, the Federal Government may, consistent with the First Amendment, ban speech by Corporations in support of or in opposition to a particular political candidate. The Court first approved such a ban in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), in a 6-3 decision. Two justices presently on the Court dissented: Justice Kennedy and Justice Scalia. (Justice O’Connor, it should be noted, joined Justice Kennedy’s dissent).

Among other things, the ACS article summarizes the case for stringent regulation of corporate speech as such:

“Generally speaking, the campaign reform acts were put into place to prevent large commercial corporations from being able to contribute a large, disproportionate amount of money towards a particular campaign under the idea that such a contribution would make the democratic process less pure. Another reason why the campaign reform statutes were enacted was the fact that people purchase stocks from a corporation to further their own economic interest – not to make a political statement. The Supreme Court has upheld these campaign reform acts in the past, finding that a commercial corporation contributing money from its treasury to a candidate comes too close to bribery.” [Read more…] about On the Regulation of Corporate Political Speech

Citizens United Compendium

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-Given the importance of the Citizens United decision, State of Elections has created this compendium of links.  Here is the complete 180+ page opinion, and a transcript of the oral arguments.

-From the Huffington Post, Joseph Palermo fears that corporations will “implant their servants at every level of municipal, state, and federal government”.   Not to be outdone, Adam McKay calls the decision “assaultive and destructive to the welfare of our democracy”.

-In contrast, David Kirkpatrick at the New York Times argues that the decision will have little impact, and is not likely to result in significantly more political corruption.   The online version of the New York Times also contains this sympathetic examination of Justice Stevens and his 90 page dissent.

-Politico, of course, has a number of articles about the decision.  They posted this analysis of the White House’s response, and a brief look at the possible role of foreign money in post Citizens United elections.  For a general overview of the decision, look at this article.  For a collection of opinions on the decision, go here.

-In the aftermath of Citizens United, The Colorado Republican party is considering a lawsuit to overturn state limits on corporate and union expenses.

-Slate has posted many articles about Citizens United, including this criticism of the opinion by Rick Hasen, and this counter argument by Nathanial Persily that the decision really doesn’t change much at all.

– In the post above this compendium, professor Alan Meese shared his thoughts on Citizens United.   However, professor Meese has long been writing about the regulation of corporate speech, even back in the long forgotten days  of 1993.

-At last, Barbara Streisand has spoken out about the decision.  The longtime Democrat and pop star says the decision opens the way to a “corporate coup d’état of America”.

-Professor Stephen Bainbridge posted this look at the common law and 14th Amendment origins of corporate personhood.

– Legal blog The Volokh Conspiracy has posted several articles about Citizens United, including this article on the relationship between money and speech,  and this counter-argument to the claim that the ruling was erroneous, because corporations are state created entities.

-Marc Ambinder of the Atlantic Monthly argues that Citizens United‘s impact on politics may be relatively minimal.

-The Wall Street Journal has posted its own roundup of opinions on Citizens United.  Also in the Wall Street Journal, Bradley Smith has authored this defense of the decision.

–David Schutlz, professor at Hamline University School of Business, wrote this analysis of how Citizens United will affect Minnesota.

– Even the Daily Show has weighed in on Citizens United.  Watch as John Oliver celebrates the Supreme Court decision that finally awards corporations their long denied rights.

– William Van Alstyne, noted First Amendment scholar and professor at William and Mary,  will post his thoughts on Citizen United on this blog.  Make sure to check back on Friday to see what Van Alstyne has to say!

-This compendium is a constant work in progress.  If you want your article on Citizens United to be included, or feel we missed a crucial viewpoint, send an email to editor@stateofelections.com

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Weekly Wrap Up

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Every week, State of Elections brings you the latest news in state election law.

– The U.S. Census bureau has released its population estimates, and if their estimates are correct, 8 states stand to gain Congressional seats in 2010, and 10 states will lose seats.

– An editorial in the St. Petersburg Times accuses Florida’s “No Match, No Vote” law of disenfranchising thousands of minority voters during the 2008 presidential election.  The law denies voter registration to any applicant whose name on the registration form does not match the Social Security or Florida driver’s license databases.

– The Supreme Court has held its last session of 2009, and still has not released its decision in Citizen United v. Federal Election Commission. The Court was expected to overrule existing precedents that allowed the government to limit the amount corporations could spend on campaigns.  However, the long delay has fueled speculation that the Court’s decision may not be as clear cut as expected.  For a review of the issues involved in Citizen United, see this transcript of oral arguments and this analysis of the possible implications of the case.

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