States reassessing campaign laws after Citizens United

Saturday, January 23, 2010

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.
(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.

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.

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.

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.

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

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.

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

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

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.

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.

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
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.

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.

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

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

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

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.

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.

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

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.

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

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

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.

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