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Congress responds to the Supreme Court’s Campaign Finance decision

by Lynn Lenart, Law Librarian on February 19, 2010

in election law,Lynn Lenart

There has been a swift response by Congress to the Citizens United v. Federal Election Commission Supreme Court ruling on January 21.   Concerns focus on unregulated âbig moneyâ in politics leading to conflicts of interest and corruption.  Corporations, Unions and contractors can now directly fund advertising calling for the election or defeat of federal and state candidates.   Additionally there is much discussion of foreign owned corporations, and those with U.S. subsidiaries, influencing American elections. To understand the effects of the United Citizens decision, see Wilson Huhnâs post here.

A recent report by the Congressional Research Service advises Congress on ways it can respond to the decision.  Here are the options for Congress.

1.  Maintain the Status Quo by doing nothing.  This allows the courtâs decision to stand. 

2.  Amend the United States Constitution to permit Congress to regulate campaign finance.  Two Constitutional amendments have been proposed so far.    The bills below are linked to the text of the legislation, bill summaries and status in the Thomas database (Library of Congress web site).
H.J. Res.  13 (sponsor Kaptur) proposes a Constitutional Amendment that gives Congress and the states the power to set limits on campaign contributions and expenditures.           
H.J. Res. 68 (sponsor  Boswell) would amend the Constitution to prohibit corporations or labor organizations from using operating funds from their general treasuries to pay for campaign advertising.      
See Wilson Huhnâs post for a list of what Congress currently cannot do under the U.S. Constitution. 

3.  Enact Public Campaign Financing.  Public financing offers matching funds to cover campaign costs.  In exchange for using public campaign funds the candidates agree to limit their private fundraising.  It has been in place since 1976 for Presidential campaigns and about 16 states offer public financing for state elections.  Under current law, there is no public financing available for House or Senate elections.   Since January 21, four pieces of legislation has been proposed to strengthen public campaign financing and to make it available for House and Senate candidates. 
H.R. 158 (sponsor Obey)- amends law to allow public financing for House elections. 
H.R. 1826 (sponsor Larson)- amends law to allow public financing for House elections, and much more.  It is a fairly comprehensive bill.  
H.R. 2056 (Tierney) – amends law to allow public financing for House elections and creates a Clean Elections Review Commission. 
S. 752 (Durbin)- amends law to allow public financing for Senate elections.  

 4.  Restrict Election Spending by Foreign Corporations.  Congress may amend current law to restrict U.S. subsidiaries of foreign corporations or add restrictions on Political Action Committees (PAC) of foreign owned corporations.  The House and Senate have been very busy proposing legislation in this category.
H.R. 3859 (sponsor Kaptur)- restricts PACs of foreign entities from making expenditures or contributions in federal elections. The following bills restrict political contributions and expenditures by foreign entities:
H.R. 4517
(sponsor Hall)  
H.R. 4522 (sponsor Pascrell)   
H.R. 4523 (sponsor Perriello)
H.R. 4540 (sponsor DeLauro)
S. 2954 (sponsor Menendez)   
S. 2959 (sponsor Franken) 

5.  Restrictions on Corporations with Government Contracts and Lobbyists
H.R. 4434 (sponsor Grayson)   Prohibit corporations receive government contracts from making political contributions and limit the amount of political donations from employees of these corporations.
H.R. 4511 (sponsor Grayson)  Proposing restrictions on political advertising by companies that employ lobbyists. 

6.  Give Shareholders additional voice in corporationsâ political spending.  This can be accomplished by either requiring corporations to get shareholderâs permission before engaging in political spending or require corporations to provide advance notice of political expenditures.  The intent here is to increase the likelihood that corporationsâ political spending will be consistent with a majority of the shareholders.
H.R. 4487 (sponsor Grayson)  This bill requires the approval of a majority of shareholders for any corporate expenditure to influence public opinion on matters not related to the companyâs products or services.
H.R. 4537 (sponsor Capuano)   Requires the express authorization of a majority of shareholders of a public company for certain political expenditures. 
H.R. 4527 (sponsor Driehaus)  Requires corporate and union backed campaign advertising to identify the sponsors in the advertisement itself as it is now for candidatesâ committees.

Read the entire report here –  Campaign Finance Policy after Citizens United: Issues and Options for Congress (published Feb. 1, 2010); By R. Sam Garrett. 

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Related Links

Hearing on the First Amendment and Campaign Finance Reform after Citizens United, held on Feb.  3   

House Committee on House Administration, Summary of the Feb. 3 hearing   

Summary of Citizens United Legislation (proposed in the House)  (H.R. 1826)  

Republican Study Committee, Policy Brief: Citizens United v. Federal Election Commission   

Democratsâ response

Campaign Finance: Potential Legislative and Policy Issues for the 111th Congress (published a year ago on Jan. 29, 2009, before Citizens United); By R. Sam Garrett.

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