Nexus: Chapman's Journal of Law and Public Policy

It seems everyone has negative connotations and thoughts when it comes to this decision by the Supreme Court. A poll was taken, and both Democrats and Republicans agree; they are unhappy with the result. Eighty percent of respondents to this poll said they disagree with the Court’s decision to allow unrestrained political corporate spending. Sixty five percent of those responding said that they “strongly opposed” the decision. What was interesting about this poll was the seemingly even handed opposition by both Democrat and Republican voters.

It seems that the new focus is how to require corporations to disclose. Since the Court’s decision, twenty four states have had to either repeal their laws or amend them to conform to the federal decision as to avoid them being challenged. Some states had to completely repeal a law and others simply amended the law to disregard the portions that are now unconstitutional. The following states had to either repeal or amend laws, they are: Alabama, Alaska, Arizona, Colorado, Connecticut, Iowa, Kentucky, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, West Virginia, Wisconsin, Wyoming.

Eleven states have enacted new laws, post Citizens United. I will go through each state’s law in some detail, except for those where the laws are mostly the same among a group of states.

Arizona enacted a law that “requires such organizations to register with the Secretary of State prior to making political expenditures beyond a threshold amount. Subsequent expenditures must be reported each time the total exceeds the same threshold amount that triggered registration. It also requires that the attribution statement on advertisements include the name of any corporation or union that funds them. Violations are a Class 1 misdemeanor, punishable by a penalty of up to three times the amount of the unreported expenditure.”

Alaska, Colorado, Connecticut, Minnesota, North Carolina, South Dakota and West Virginia all have similar laws to Arizona’s. Some, for instance, like South Dakota require contributors to report within fifteen days of contribution or it is a Class 2 misdemeanor. Each of these states has similar laws to each other.

Iowa’s law is slightly more stringent. It requires, “the leadership body of a corporation (such as the board of directors or executive council) to approve political expenditures before the organization makes them. The approval must be made in the same calendar year as the expenditure, meaning it will have to be obtained annually for ongoing political activity. Iowa is the first state in the country to require this type of approval for corporate political expenditures. Iowa's law also requires registration and reporting of political expenditures and attribution statements on advertisements. In addition, it creates a new definition for "foreign national" which prohibits political activity by corporations that are organized under the laws of or have their primary place of business in another nation.”

And finally, in Massachusetts, it is required to have a disclaimer on “corporate-sponsored political advertisements.”

As you can see, there are many states that are not very happy with the results of the Court’s decision and they are taking action about it. This is what makes our system so unique and so wonderful. The power of the state legislature to try and finagle their way out of federal decision in which they do not agree; this is exactly the contemplation of the constitution.

Some states have already enacted different disclosure requirements already. Those states are: Alaska, Arizona, Colorado, Connecticut, Iowa, Massachusetts, Minnesota, New York, North Carolina, South Dakota, Washington and West Virginia. Some of these statutes require annual reports; some require only that a political committees supply a list of the top five contributors.

Furthermore, nine states have sent resolutions to Congress. “While these bills do not hold the power of law, they can express a legislature's discontent with Citizens United, or they may ask Congress to change federal law.” Those states are California, Hawaii, Idaho, Kentucky, New Jersey, Pennsylvania, Rhode Island, South Dakota and Washington.

Hawaii, New Jersey and Washington have asked that a corporate entity no longer be considered a “person” and that the constitution be amended to reflect the idea. This reminds me of the idea Tim Canova spoke about at the Symposium which also sparked my interest. It has been a long time since the Constitution has been amended and even Mr. Canova agreed; it probably won’t happen any time soon. Looking at the situation logically, what good is a Constitution that is constantly changing? Isn’t one of the reasons we have such faith and reliance in this country because of its unwavering ability to believe in its foundation and its Constitution?

This brings me back to my main point, bipartisan discontent with the Court’s decision. It may be easy to see why more Republicans than Democrats are accepting of the decision. Republicans feel it is a vindication of First Amendment rights. And while I understand and almost sympathize with their strict constitutional view, it occurs to me that the problem isn’t upholding the First Amendment, the problem lies in a corporation being considered a “person” protected under that right. It is hard to grasp your head around a corporation having the right to freely express themselves. Yes, corporations consist of many people put together, but a corporation is an entity, an entity is a thing; not a person.

With the Democrats in the Senate and the Republicans in the House, it will be interesting to see how these new bills and initiatives fare. If the states continue to protest and the people continue to exercise their own First Amendment rights, then the government should hear them. Barely a quarter of states have reacted to the decision which is almost a year old. Some may say this is a short period of time, but before the 11th Amendment was enacted, it took states two weeks after Chisholm v. Georgia was decided to amend the constitution with the 11th Amendment creating states’ sovereign immunity. It is time for we the people, to make changes.

Cited Material:

http://www.washingtonpost.com/wp-dyn/content/article/2010/02/17/AR2010021701151.html http://www.ncsl.org/default.aspx?tabid=19607 Chisholm v. Georgia, 2 U.S. 419 (1793)