States can limit corporate and union spending on elections

By Brian Frosh and Jamie Raskin
Saturday, March 13, 2010

Discussion of President Obama's remarks about the Supreme Court and campaign finance during the State of the Union has once again turned attention to Citizens United v. Federal Election Commission. The court ruled in January, by a 5 to 4 vote, that corporations must be treated like people in the political process -- that is, like very rich people who want to spend money to elect or defeat candidates for public office.

Both supporters and critics of the decision are assuming that mega-corporations will become a political juggernaut. But while the would-be corporate kingmakers uncork the champagne and populists in Congress draft language for a constitutional amendment, everyone should remember that the other shoe has not yet dropped.

The 50 state legislatures (and the D.C. Council) that charter, supervise and regulate nearly every corporation in the land are still responding to the court's dramatic recasting of the political landscape. (Washington state has passed a bill that is waiting for the governor's signature.)

In fact, the state legislatures have power to constrain runaway corporate and union political spending -- if they are willing to exercise it.

The Citizens United decision allows monied interests to tilt the balance of our democracy. It also gives corporate officers the ability to play politics with shareholders' money. A group of more than 20 concerned Maryland legislators has joined with us to propose a package of bills to limit the worst aspects of the decision.

Specifically, our bills would:

-- Require that any corporate executives or union leaders seeking to make political campaign expenditures first obtain a majority vote of shareholders or union members approving the specific expenditure, which would guarantee that the move would reflect the will of shareholders or union members, not the whims of the chief executive or union leader.

-- Ban "pay to play" corruption (and its appearance) by preventing state contractors from making campaign expenditures on behalf of state political candidates and their campaigns.

-- Compel public disclosure of all corporate and union political disbursements.

Each of these bills proceeds based on a clear constitutional power enjoyed by states. For example, conditioning particular corporate actions and expenses on shareholder approval is a well-established norm in state corporate codes. And the Citizens United decision affirmed the lawfulness of reporting and disclosure requirements.

Furthermore, the court's 1976 decision in Buckley v. Valeo justifies pay-to-play legislation since it permits regulation of campaign money when it threatens corruption or the appearance of corruption. These dangers are clearly present if we allow corporations both to win state contracts and to spend money on behalf of candidates for state office who can influence the formulation of policies relevant to state contractors.

The great thing about living in a nation with powers that are divided both horizontally among the branches and vertically between the federal government and states is that no one center of power may dictate to the rest of the society the character of our politics. The Citizens United case has opened an important dialogue about the role of corporations in our politics. Now is the time for the states, the traditional laboratories of democracy, to speak clearly in order to protect government by and for the people.

Brian Frosh (D) represents parts of Chevy Chase, Bethesda and Potomac (District 16) in the Maryland Senate and chairs the Judicial Proceedings Committee. Jamie Raskin (D) represents Silver Spring and Takoma Park (District 20) in the Maryland Senate and serves on the Judicial Proceedings Committee.

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