The U.S. Supreme Court’s rejection of decades-old campaign spending limits gives states scant time to face an election-year dilemma: brace for a flood of new money in politics, or find new ways to rein it in.
Within days of the ruling, state legislatures started reacting. At least eight states are pushing for greater disclosure of political spending by corporations and unions. At least three states, led by West Virginia, would go further by requiring corporations or unions to get permission from their shareholders or members before they can spend money on elections.
In Citizens United vs. FEC, the Supreme Court ruled 5-4 that the government could not bar the conservative group Citizens United from distributing a movie critical of Hillary Rodham Clinton on local cable systems during the 2008 presidential campaign, when Clinton was a candidate. That overturned parts of a 63-year-old law prohibiting companies and unions from using their general treasuries to produce and run campaign ads urging the election or defeat of particular candidates.
That means that November’s elections for federal and state office — including crucial races for legislative seats that will determine who redraws congressional districts after the 2010 Census — could see a huge influx of special-interest money.
“The Citizens United case blew a hole in things, but it didn’t tell us how to patch it up,” said Ohio Secretary of State Jennifer Brunner, the state’s chief elections officer.
Brunner has asked Ohio lawmakers to require greater disclosure from corporations, unions and other groups that buy the kinds of ads the court ruled are protected by the First Amendment.
She wants Ohio lawmakers to act before this year’s election spending begins in earnest.
“If the Legislature doesn’t act, what’s likely to happen is for someone to test the waters, push the envelope and then there’s likely to be litigation,” she said.
But groups that welcomed the Citizens United decision warn that states will invite successful legal challenges if they press beyond disclosure and pursue the sort of requirements being debated in West Virginia.
Instead, lawmakers should “set aside the white-hot passions about these issues” and simply spell out the new rules, said Jeff Patch, a spokesman for the nonpartisan Center for Competitive Politics, which opposes campaign finance limits.
Corporations and unions “want to know what the rules are so they can follow them,” Patch said. “If the legislature does not give them a clear picture, it could result in a free-for-all.”
The most common state response so far is to require disclosure of donors behind the advocacy groups that often pop up in election years. Among states pursuing that approach are West Virginia, Alaska, Minnesota, Kentucky, Arizona, Tennessee, Wisconsin and Maryland.
“All states and the federal government ought to be strengthening their disclosure laws,” said Michael Malbin, executive director of the Campaign Finance Institute, a nonpartisan group affiliated with George Washington University. “I think the court opened the door for more detailed disclosure requirements.”
Such requirements appeal to lawmakers in states like Wisconsin, which had passed a bill to limit campaign spending just two days before the Supreme Court’s ruling. The effort effectively died after the court’s decision, but now lawmakers there are considering a measure requiring that corporate donors be named when running campaign ads.
Malbin noted that about half the states already allowed corporate spending before the ruling, and therefore were unaffected by it. But the response since then isn’t limited to states whose laws were found unconstitutional, said Jennie Bowser, an elections analyst for the National Conference of State Legislatures.
“This has drawn attention to corporate activity in campaigns in general, and Maryland’s a good example of that,” she said.
Maryland had no ban on independent expenditures, so it wasn’t directly affected by the ruling. But its lawmakers are now looking at bills that would require corporate campaign advertisements to publicly disclose the corporation paying for the ad.
Maryland is also considering taking a more drastic step by requiring corporations’ shareholders to sign off on campaign spending, an approach also being contemplated in West Virginia.
The Maryland House of Delegates voted to require that a majority of shareholders approve of campaign spending over $10,000 by corporations based in the state.
Supporters cast the bill as protecting shareholders. But the largely party-line vote in the Democrat-controlled chamber followed arguments that the bill threatens political speech in the name of increased transparency.
“Those attacks on the First Amendment that sound good are the most dangerous,” House Minority Leader Tim Armstead said during debate.
Iowa lawmakers considered but rejected shareholder requirements. The Senate there passed a bill requiring corporations and unions to report their campaign spending and identify themselves in advertisements.
Such debates also have occurred in New York, where a similar measure is pending, and in South Dakota, where a shareholder approval bill died.
Associated Press Writer Molly Hottle in Des Moines contributed to this report.