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States reassessing campaign laws after Citizens United

By The Associated Press,
First Amendment Center Online staff
01.23.10

Editor's note: This story has been updated with information for additional states since the original was posted Jan. 23.

The major Supreme Court decision Jan. 21 that could change how presidential and congressional campaigns are funded is also prompting many states to examine their campaign-finance laws.

Voting 5-4 in Citizens United v. FEC, the Court overturned Austin v. Michigan Chamber of Commerce (1980) and part of McConnell v. FEC (2003), as well as the decades-old law that said companies and labor unions can be prohibited from using money from their general treasuries to produce and run their own campaign ads. The decision threatens similar limits imposed by 24 states.

The Court ruling left in place a prohibition on direct contributions to candidates from corporations and unions. That provision was not challenged by Citizens United.

Here is a roundup of Associated Press stories about some states' reactions to the ruling so far.

Arizona
PHOENIX — The Supreme Court decision apparently means companies and labor unions can spend to influence Arizona elections for public offices, a state official said. Arizona law now prohibits business and corporate spending in state candidate races. But it seems those prohibitions cannot now be enforced because the Supreme Court ruling said similar federal prohibitions violate the Constitution's free speech protections, Election Director Amy Bjelland said.

"The First Amendment covers us no matter where we are. It trumps state law," agreed Nick Nyhart, president of Public Campaign, a Washington-based public campaign funding advocacy group. "There are some big kahunas that now can be active in your campaigns."

Bjelland, a top aide to Secretary of State Ken Bennett, said his office was already reviewing state election laws to recommend changes for the Legislature to make during its just-begun 2010 session. A repeal of the spending prohibitions could be included, she said.

Colorado
DENVER — Citizens United ruling has left the state's campaign-finance law vulnerable to a legal challenge, but the top elections officer is hoping to avoid that by asking the Colorado Supreme Court for advice.

Secretary of State Bernie Buescher reached out Jan. 22 to Republican and Democratic legislative leaders, Gov. Bill Ritter and election lawyers, urging them to try to work together to figure out the fate of Amendment 27 rather than file a lawsuit. His plan is to come up with a list of questions about how the Supreme Court ruling affects parts of Colorado's law and see if state lawmakers can pass any needed changes during the current session. For example, he said legislators could pass a law calling for more disclosure for the new unlimited spending allowed by the ruling.

Buescher said asking for judicial advice would be the fastest way to find out what the new campaign finance rules should be in the middle of a busy election year. He said it also would save money because the state, with a law that is at least now partially unconstitutional, would likely end up paying attorneys fees as the losing side in a court battle.

Connecticut
HARTFORD — National advocates for public campaign financing say Connecticut officials need to shore up their legally besieged system quickly in the wake of the Supreme Court decision.

They say workable state-run public financing programs for candidates, like Connecticut's "Citizens' Election Fund," are crucial because they show there's still an alternative funding system that's available where politicians are beholden to the voters who make small donations and not to large, special interests and corporations.

"Connecticut is absolutely important," said Bob Edgar, national president of Common Cause. "I think over time, if we have more cities, more states, more counties using public financing, we will be able to use that data to convince Congress that's the way to go."

Maine and Arizona also have public financing systems. But Connecticut's voluntary four-year-old program, which requires candidates to raise small contributions to qualify for public grants, is in limbo. Last August, a federal judge ruled that the law, seen by some as a possible national model, as unconstitutional, partially because it discriminates against minor party political candidates. The judge also ruled against a trigger in the law that provides a participating candidate extra public money if his nonparticipating opponent exceeds the program's spending limits, or if the participating candidate faces a barrage of negative advertising attack from an outside group. Judge Stefan Underhill agreed to allow the state's program to remain in force as Connecticut challenges his ruling before the 2nd U.S. Circuit Court of Appeals, which could issue a decision in the coming weeks or months.

Meantime, a group of state legislators, representatives from Gov. M. Jodi Rell's office and the State Elections Enforcement Commission have been working behind the scenes on possible fixes to the law that could be presented to the General Assembly, which opens its regular legislative session on Feb. 3.

Hawaii
HONOLULU — A public-advocacy group wants expanded public financing of campaigns in Hawaii in the wake of Citizens United. Common Cause Hawaii is calling on state legislators to expand a pilot public financing project on the Big Island, and to improve requirements for disclosure of campaign contributions. The group also wants better disclosure of lobbying expenses, gifts given to legislators and the financial interests of lawmakers.

Executive Director Nikki Love says the court ruling did not have a direct impact on Hawaii laws. But she says companies are now expected to flood money into the as-yet-unscheduled special election to fill the remainder of Rep. Neil Abercrombie's term.

Iowa
DES MOINES — Citizens United effectively overturns a state law banning corporate and union campaign spending, and lawmakers should respond, the state's top ethics regulator said Jan. 21. "I want to bring it to their attention and we need to decide if they want to act on it," said Charles Smithson, head of the Iowa Ethics and Campaign Disclosure Board. He sent an e-mail to legislative leaders warning them of fallout from the decision.

Iowa law has prohibited businesses and unions from giving money to candidates and from using their money to influence an election. The Supreme Court ruling effectively strikes down that ban, Smithson said. "This is very confusing to legislative leaders and the public," he said.

Legislative leaders labeled the ruling "outrageous" and vowed to act, though it was far from clear what they could do. "It's absolutely outrageous and we've got to find a way to deal with it," said Senate Majority Leader Michael Gronstal, D-Council Bluffs. "I am on the side of ordinary working families when it comes to political campaigns. We are going to do our very best to deal with this issue."

House Majority Leader Kevin McCarthy, D-Des Moines, said he spoke with Attorney General Tom Miller about the issue, and said key leaders are considering their options. "We're going to do everything in our power to try and prevent this corporate decision from influencing our politics," said McCarthy. "If there are any options we have we will move extremely quickly to pass legislation."

One option to be explored is an existing law that bans registered lobbyists from making campaign contributions while the Legislature is in session.

Republicans dismissed the worries. "My biggest concern with campaign finance is disclosure," said House Minority Leader Kraig Paulsen, R-Hiawatha. "I don't know that this changes any of our disclosure laws."

Smithson said the ruling means both unions and businesses can spend their treasuries in efforts to influence elections, but they would have to disclose that spending. Previously they formed political action committees for such spending, and had to raise the money independently.

Maryland
ANNAPOLIS — A liberal lobbying group in Maryland is denouncing the Supreme Court ruling. Sean Dobson, executive director of Progressive Maryland, called the decision "absurd." But he added that Citizens United established that the only kind of campaign-finance regulation capable of withstanding judicial challenge is voluntary, public funding of campaigns. Dobson says that's exactly what his group is advocating in Annapolis. The measure passed the House in 2006 and nearly passed the Senate last year.

Michigan
LANSING — The Supreme Court's decision to increase vastly the ability of big business and unions to sway elections was a moment of triumph for the Michigan Chamber of Commerce, which was involved in one of the cases the Court reversed.

In 1985, the Chamber wanted to buy a quarter-page newspaper ad in the Grand Rapids Press urging voters to choose Republican Richard Bandstra over Democrat Robert Kolt in a special election for a state House seat. Then-Secretary of State Richard Austin said the ad violated state law. The Chamber failed to get an injunction and ended up taking its case to the federal courts. It lost in the district court and won on appeal, only to lose again in 1990 in Austin v. Michigan when the Supreme Court upheld Michigan's ban on corporate expenditures in such cases. But Citizens United overturned Austin and other bans on corporate spending, ruling instead that companies and unions can't be prohibited from using money from their general treasuries for campaign ads.

"It's gratifying after so many years to see the U.S. Supreme Court acknowledge that corporations have a First Amendment right to express their views at election time," the Chamber's general counsel, Bob LaBrant, said Jan. 21 in a release.

But Rich Robinson of the nonpartisan Michigan Campaign Finance Network said the ruling won't have much effect on Michigan campaigns because "it is highly unlikely that there are any corporations in Michigan that don't know how to get in the game." He noted that the state's political parties and the Chamber have spent around $50 million during the past decade for candidate-focused television issue ads in gubernatorial and state Supreme Court campaigns, spending that was allowed in Michigan even before the ruling.

Missouri
JEFFERSON CITY — Missouri's leading Senate candidates are taking opposite positions on the Supreme Court ruling. Republican Congressman Roy Blunt said he was pleased the Court recognized that freedom of speech cannot be legislated away through campaign-finance regulation. Democratic Secretary of State Robin Carnahan said she was disgusted by the ruling, predicting it would lead to more attacks from corporate special interests. Blunt and Carnahan are the frontrunners to replace retiring Sen. Kit Bond in the November elections.

Montana
HELENA — Montana's ban on corporate political contributions is still in place after Citizens United, but maybe not for long, the state attorney said. Montana, like 23 other states, has its own ban on political contributions. The high court ruling means Montana's 1912 voter-passed ban on corporate donations is ripe for legal challenge. Montana Attorney General Steve Bullock said the state law would stay in effect until it was specifically challenged.

New Jersey
TRENTON — A state senator says the state's campaign-finance laws need review in light of Citizens United. Sen. Bill Baroni called the decision "the most profoundly destabilizing campaign finance ruling in decades." The Republican from Hamilton says it could have far-reaching implications for New Jersey's ban on donations from casinos and the state's pay-to-play laws, which bar donations from businesses that have contracts with the state. Gov. Chris Christie has extended the ban to labor unions. Baroni is asking state legislative leaders to appoint a bipartisan committee to conduct the review.

North Carolina
RALEIGH — Citizens United stands to increase the sway of big-bucks businesses and unions in North Carolina for state and legislative elections. North Carolina has a law similar to a federal one that had barred corporations and unions from using money from their general treasuries to produce and run campaign ads to endorse or oppose a candidate. The state law, which also applies to insurance companies, now appears unenforceable given that a majority of the justices struck down the federal law on grounds of protecting political speech, State Board of Elections executive director Gary Bartlett said.

"It will take several readings and meetings with different people to try to understand the full meaning of the decision," Bartlett said, but "it will certainly change the landscape in terms of who gives and the impact."

Dana Cope, executive director of the State Employees Association of North Carolina, said he welcomed the change and expected to spend more in primary elections for legislative races. The association generally gives money to candidates from its political action committee but now will have more options.

North Dakota
BISMARCK — Attorney General Wayne Stenehjem says the high court ruling could affect North Dakota political campaigns. North Dakota law bars corporations and labor unions from contributing directly for "any political purpose." Stenehjem says he hasn't analyzed all of the lengthy ruling, but he suspects it will change how North Dakota political campaigns are conducted.

Ohio
COLUMBUS — Legal experts say Ohio's ban corporate campaign spending is likely unenforceable in the wake of the decision. Edward Foley, director of an election law center at Ohio State University, says he expects state lawmakers will attempt to modify Ohio's law to bring it into compliance with the ruling. Ohio law says no corporation, nonprofit corporation or labor group can spend its money for or against a political party, candidate or "for any partisan political purpose." State Attorney General Richard Cordray's office is reviewing the Court's decision, which reversed a century-long trend to limit the political muscle of corporations, organized labor and their massive war chests.

Pennsylvania
HARRISBURG — Citizens United may have an impact on Pennsylvania elections. The Philadelphia-based election watchdog Committee of Seventy says the decision calls into question the constitutionality of a similar law in Pennsylvania. Gov. Ed Rendell's administration says it is reviewing the opinion to determine its impact on state campaign finance law. Sen. Arlen Specter was critical of the court's decision, and says it appears only a constitutional amendment will solve the problem he says it created.

South Dakota
PIERRE — Secretary of State Chris Nelson says he and the attorney general's office are reviewing the Supreme Court ruling, which could affect South Dakota political campaigns. South Dakota laws for the most part restrict corporate involvement in politics. Nelson says officials are looking at how the new opinion might affect such restrictions.

Washington
OLYMPIA — The Court's decision might not have much effect in Washington state. Under state law, there's no prohibition on corporate or union contributions, according to the state Public Disclosure Commission. Any spending from general treasury funds has to be reported when a political committee is formed. But the PDC is still reviewing a portion of the ruling that overturned a ban on union- and corporate-paid independent campaign ads in the closing days of election campaigns. Washington state has a disclosure requirement on ads that air near an election, and PDC Assistant Director Doug Ellis says the agency isn't yet sure how that could affect Washington's rule.

West Virginia
CHARLESTON — Attempts by West Virginia's Legislature to require more-transparent campaign spending are not necessarily derailed by Citizens United, a top lawmaker said Jan. 22. In fact, Senate Judiciary Chairman Jeff Kessler thinks the Court's decision may even bolster West Virginia's efforts to secure greater disclosure from individuals and groups that bankroll election advertising. "Some folks are saying now that our entire set of regulations and laws on this are no good, but I don't read it that way," the Marshall County Democrat said.

Wisconsin
MADISON — The high court ruling may kill attempts in Wisconsin to limit political spending by outside groups, supporters conceded. The decision will also likely make Wisconsin's race for governor this year an even more chaotic and expensive affair, with unions and corporations getting more involved, said Jay Heck, director of Common Cause in Wisconsin. He predicted that campaigns and special interests would spend $75 million or more on the race to replace Gov. Jim Doyle, compared to an earlier estimate of $40 million.

Mike Wittenwyler, a Madison lawyer who represents such groups, said he believed corporations would spend the same amount of money trying to change public policy, but now a greater percentage on campaigns and less on lobbying.

The decision comes just as Heck and other campaign-finance regulation advocates were on the cusp of persuading Wisconsin lawmakers to enact a law meant to limit political spending by outside groups. The Wisconsin Senate had approved a bill on Jan. 19 that would require groups that run election-time ads to disclose the names of their donors, face certain fundraising and spending limits, and bar them from tapping corporate or union treasuries to pay for them. Heck said the requirement to disclose donors could still be approved this legislative session, but the spending restrictions might be dead.

"I said the other day on the Senate floor that the Supreme Court could rule all this null and void. It would look at first blush, that's exactly what happened," said Sen. Mike Ellis, R-Neenah, a sponsor of the bill. "I think it's a sad day for democracy."

Sen. Jon Erpenbach, D-Waunakee, another sponsor, said he hoped to salvage at least parts of the bill. He said the high court decision would give corporations greater influence than individuals in elections by removing their spending limits. Individuals, meanwhile, cannot give more than $10,000 to a statewide candidate in Wisconsin.

Lawyers for the Assembly, where the plan has passed a committee, were reviewing the Supreme Court decision to determine the impact on the bill, a spokeswoman for Speaker Mike Sheridan said. He has not decided whether to move the bill to the floor for final passage.

The Government Accountability Board has also been considering passing a similar administrative rule to regulate and require disclosure for issue ads, but had put the process on hold until the high court ruled. Director Kevin Kennedy said the board's initial legal review found the rule should not be affected by the decision. Wittenwyler, whose clients have threatened to sue to block the rule, disagreed, saying the rule now needs significant revisions.

Wisconsin Right to Life called on lawmakers and the Government Accountability Board to clarify that groups such as it can now expressly advocate for state candidates. Spokeswoman Sue Armacost said the anti-abortion group may no longer need to operate a separate political action committee to endorse candidates. "We're extremely pleased the U.S. Supreme Court has protected our freedom of speech," she said.


Related

Court rolls back campaign-spending limits

In Citizens United v. FEC, justices also strike down part of law that barred union, corporate ads in closing days of campaigns. 01.21.10

A changed legal landscape in campaign finance

By David L. Hudson Jr. Justice Kennedy notes that, historically, direct corporate contributions to candidates have been restricted much more than corporate spending on behalf of candidates. 01.21.10

Colo. high court finds state campaign-finance law unconstitutional
Gov. Bill Ritter had asked state justices to weigh in after recent U.S. Supreme Court ruling in Citizens United. 03.23.10

Wis. regulators can't prosecute referendum foe
Federal judge orders Government Accountability Board not to enforce campaign-disclosure laws against Whitewater resident Charles Hatchett. 04.05.10

Federal judge voids some Minn. campaign-spending rules
Siding with state Chamber of Commerce, court declares restrictions on independent expenditures by corporations on behalf of political candidates unconstitutional. 05.11.10

N.H. House kills campaign-finance disclosure measure
Bill would have required corporations, other groups to file with state when they spend $10,000 or more on political advertising. 06.03.10

Ohio deal frees up political ads near elections
Agreement settles part of 2008 lawsuit brought by Ohio Right to Life Society against Ohio Elections Commission, secretary of state. 09.17.10

Mont. judge tosses out corporate campaign-finance law
Attorney general promises quick appeal to state high court, saying 1912 Corrupt Practices Act should stand despite U.S. Supreme Court ruling in Citizens United. 10.20.10

10th Circuit: Small groups needn't file campaign-finance reports
Court rules that requirements for groups promoting ballot initiatives were so burdensome that they violated First Amendment. 11.10.10

Wis. board adopts emergency campaign-finance disclosure rule
Government watchdog group, state's largest teachers union had argued there was no need to take immediate action since state high court has yet to act on a challenge to same rule. 12.24.10

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