On the Regulation of Corporate Political Speech
January 27, 2010
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 
to 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.” (more…)
Citizens United Compendium
January 27, 2010
-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
Congressional Vacancies, Election Certification, and American Idol
January 21, 2010
Scott Brown, that American Idol fathering, sexiest man winning, pickup truck driving politician has won a decisive victory in Massachusetts. But even before polls opened, there was a budding controversy over exactly when the election results would be certified and the winner seated. Several media outlets are reporting that Democrats may attempt to delay Brown’s swearing in, in an effort to push health care reform through before Brown can take his seat. Instead of providing yet another analysis of the current situation in Massachusetts, State of Elections is going to examine the existing law and customs governing special elections, and take a look at some previous controversies surrounding the certification of special elections. (more…)
Weekly Wrap Up
January 21, 2010
– The Supreme Court’s decision in Citizens United has been released, and it’s a doorstopper. Weighing in at over 180 pages, the decision gives corporations, unions, and non-profits more power to spend freely in federal elections. Of course, Citizens United has sparked quite a bit of controversy. Rick Hasen, a leading election law scholar and member of the William and Mary Election Law Program Advisory Board, posted a scathing critique of the opinion on Slate, and an examination of the possible future of campaign finance on the Huffington Post. Ironically, Hasen’s book was cited in the majority opinion.
– Senator Chuck Schumer is rumored to be working on a “universal voter registration” bill. Originally, rumors had pegged Barney Frank as the author of the bill, sparking a mild controversy on the Hill and a fierce denial by Frank. The possibly fictional bill would automatically register millions of people to vote.
– State of Elections has published several articles about felon disenfranchisement over the past few weeks, all of which have supported the restoration of felon voting rights. In the interest of balance, here’s an editorial opposing the restoration of felon voting rights, written by Hans A. Von Spakovsky and John Park and published in the Richmond Times Dispatch.
– State of Elections is working on a new article, possibly a series of articles, about voting machines. Specifically, we will be looking at New York City’s recent decision to replace its old lever operated machines with modern electronic voting machines. If you have any information about NYC’s process for selecting a company to provide its machines, or any special knowledge about voting machines in general, please contact us at editor@stateofelections.com.
https://stateofelecdev.wpengine.com/2010/01/22/weekly-wrap-up-8/
State of Elections Welcomes First Editor in Chief
January 20, 2010
State of Elections and the Election Law Society of William & Mary are thrilled to announce it’s first Editor-in-Chief, Anthony Balady. A first year law student born and raised in New Jersey, Anthony has a degree in political science with a minor in writing and rhetoric from James Madison University. While we have a team of great editors on our blog, Anthony has emerged as a leader who will roll up his sleeves and leaves draft blog posts bleeding with red ink.
Reaction to this historic move for our blog was widely positive. When reached for comment, President Obama said it was “the best news we’ve had all week.”
Aware of Mr. Balady’s brown belt in Tae Kwon Do, Senator-elect Brown (R-MA) issued a statement nominating Anthony for Cosmo’s 2010 “America’s Sexiest Man.” It’s worth noting that when Cosmo comes calling, both men will have won the award while in law school, but only one will have had the privilege of leading the best student-run election law blog in the country.
For our readers wondering what type of political background Anthony has, we asked him a few basic questions. His first political memory? Clinton’s Lewinsky scandal. The first campaign that got him into politics? McCain in 2000: “That was the first time I realized that politics wasn’t just an entertaining sideshow, it had a real impact on real people,” the new chief said. Though he was quick to point out that McCain 2008 didn’t inspire the same feelings. In 2008, Anthony was pulling for Stephen Colbert. Seems like all of his candidates run into trouble in South Carolina.
Please join our blog family and the national, bi-partisan enthusiasm and welcome Anthony with an email at editor@stateofelections.com.
Online Voter Registration: A Small Step in the Right Direction
January 18, 2010
Lawmakers in the Michigan House recently passed HB 4539 and 4540, which together lay out the principles to allow for the electronic submission of voter registration applications. The change would allow for citizens with access to the Internet to register online by filling out a form similar to the paper form, and signing 
electronically. The form is then automatically printed at the local clerk’s office. Arizona was the first to implement online voter registration in 2003, followed by Washington in 2008, with six other states following last year. Other states have proposed similar legislation, and online registration continues to grow in popularity. In Arizona, 25% of all new voter registrations took place online in its first year and within a few years that number reached 70%. Michigan is expected to see similar numbers. The bills are currently headed to the Senate for further review.
This new legislation has several clear aims. The costs associated with online registrations are significantly lower than paper forms. Arizona spends nearly 83 cents processing each paper voter registration form while their online voter registrations may be completed with a cost of only 3 cents. Postage for delivery and receipt is not necessary with online registration because the form is immediately and automatically printed off at the clerk’s office after the registrant submits online. The registrant then has the option to print off a copy on their printer for personal records. This process would also cut down the amount of information that needs to be manually entered from paper forms, which would help prevent errors. Michigan in particular experienced difficulties with third-party form falsification last fall with groups like ACORN. Michigan hopes to eliminate such risks by taking the registration forms out of those group’s hands and giving voters this simple and streamlined way of registering.
Weekly Wrap Up
January 15, 2010
Every week, State of Elections brings you the latest news in state election law.
– Implementation of the Tennessee Voter Confidence Act has been delayed until 2012. The Act, which would require paper ballots in all Tennessee elections, has been highly controversial and strongly opposed by Republicans in the legislature. Lt. Gov Ron Ramsey even declared that delaying the bill was his No. 1 priority. Bernie Ellis, a leading proponent of the Act, posted this editorial on State of Elections in December. For more background, check out this article by Drew Staniewski.
– A federal judge in Arizona appears ready to dramatically change that state’s system of funding elections. Under Arizona’s Clean Elections system, certain candidates receive government funding for their campaigns. The system is designed to allow less well-funded candidates to compete with more affluent opponents. Judge Roslyn Silver, however, has written a draft order that would strike down these matching funds as unconstitutional.
– Washington Attorney General Rob McKenna and Secretary of State Sam Reed have announced that they will appeal the 9th Circuit Court’s decision in Farrakhan v. Gregoire. The decision restored the voting rights of felons in Washington. For more of State of Election’s coverage of the debate over felon voting rights, go here and here.
Voter Privacy and the Know Campaign
January 13, 2010
I get tons of political mail. Most of it I don’t read – after all, it contains little useful information. But if someone mailed me this, it would surely catch my eye:
“Below is a partial list of your recent voting history — public information obtained from the Virginia State Board of Elections…We have sent you this information as a public service because we believe that democracy only works when you vote.”
What if this mailing also contained information about my neighbor’s voting history in order for me to encourage/shame him into voting in the upcoming election?
This is exactly what the Know Campaign in Virginia sought to do this election cycle before legal action stopped them in their tracks. To read more about that, check out the Washington Post’s story here. The Know Campaign’s press release that started all of the excitement is here. (more…)
Ye Olde Election Law: The Bizarre History of Election Law
January 11, 2010
Election law has certainly earned its eccentric reputation. From zombie voters to hanging chads, the strange history of modern election law has become ingrained in the public consciousness. But, as odd as the last decade has been, the previous centuries of election law have been even more bizarre. So, in this series of articles, State of Elections will take a closer look at some of the stranger moments in election law.
One such moment happened in California’s Siskiyou County. In 1895, Clarence Smith was elected school superintendent of that county by a single vote. His opponent, George Tebbe, contested the result. When the ballots were recounted, the court found three additional votes for Tebbe, and declared Tebbe the new winner by two votes. However, until the ballots could be counted in open court, they had been stored under the desk in the county clerk’s office. This sounds all well and good, except that Tebbe was deputy clerk at that office, and worked in the same room where the ballots were stored. Imagine Tebbe, sitting just a few short feet from the ballots, the ballots that would decide his political future. Even if there was no actual vote tampering, surely even the appearance of impropriety would warrant a stern rebuke from the court. Of course, no such rebuke was forthcoming. Instead, the court praised the “prudence of the clerk and the fair dealing of all concerned”, and required that Smith prove that ballot tampering took place before taking any action.
Weekly Wrap Up
January 8, 2010
Every week, State of Elections brings you the latest news in state election law.
– Winter break at William and Mary is over, and State of Elections is excited to return to a full time posting schedule. New articles will be posted every Monday, Wednesday, and Friday, beginning on January 11th.
– Senator Chris Dodd has announced he will not seek reelection in 2010. During his time in the Senate, Dodd proposed some sweeping changes to voter registration laws. Take a look at S. 17, Dodd’s proposed “Voting Opportunity and Technology Enhancement Rights Act of 2005”. If it had been passed, S. 17 would have required states to allow voters to register on election day, and also would have enabled voters to register electronically via the Internet.
– The 9th Circuit Court of Appeals has ruled that the disenfranchisement of felons violates the federal Voting Rights Act. According to the court, the criminal justice system is so “infected” with racism that limiting the right of felons to vote is contrary to the Act’s prohibition against the denial of voting rights on account of race. The court’s opinion can be read in full here.
– The Rhode Island Senate and House has enacted legislation allowing 16 and 17 year olds to “pre-register” to vote. Those that pre-register will be automatically added to the voter rolls will they turn 18. The bill had been previously vetoed by Rhode Island Governor Donald Carcieri, but the veto was overridden by the legislature. For more information on pre-registration, see FairVote.org’s fact sheet.