Resolution in Support of the Citizens United Decision Exposed

The Resolution in Support of the Citizens United Decision was adopted by ALEC's Public Safety and Elections Task Force at the Annual Meeting on August 7, 2010, and approved by the ALEC Board of Directors on September 19, 2010. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

CMD's Bill Summary

This Resolution purports to support the U.S. Supreme Court's Citizens United decision, but it only does so insofar as that decision allowed unlimited corporate spending on elections; the Resolution ignores the fact that the Court justified unlimited spending on the grounds that "disclosure permits citizens and shareholders to react to the [spending] in a proper way," and that the Court explicitly rejected a claim that disclosure requirements should be overturned. Additionally, this Resolution was adopted in August 2010, before it became apparent that right-wing organizations would abuse the taxcode to avoid disclosing their spending in the 2010 midterm elections. This Resolution suggests that ALEC corporations and politicians had been planning that approach well in advance.

A year before this Resolution (and before the Citizens United decision was announced), ALEC passed the Resolution Supporting Citizen Involvement in Elections that expressed support for disclosure "as an effective way to identify potential corruption."

U.S. Supreme Court Justice John Paul Stevens, who was appointed to the nation's highest court by Republican President Gerald Ford, dissented from the extreme decision of the narrow majority in the Citizens United case. As he correctly observed: "Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office... [t]he financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races."

ALEC Resolution Text

Summary

This Resolution emphasizes the importance of first amendment protections of corporations’, non-profit advocacy groups’, and labor organizations’ speech. The resolution warns that mandatory disclosure and disclaimer requirements, particularly relating to an organization’s source of funding, can be intimidating to such organizations and inhibit free speech.

Resolution

WHEREAS, the January 2010 Supreme Court decision in Citizens United v. Federal Election Commission restored and affirmed the First Amendment rights of corporations, labor organizations, and nonprofit advocacy groups to engage in political speech in campaigns; and

WHEREAS, violations and burdensome restrictions placed upon the above named groups have the effect of chilling speech and are in violation of these organizations’ First Amendment rights; and

WHEREAS, shareholder approval schemes, in which a corporation’s shareholders, corporation or nonprofit advocacy organization’s board of directors, or labor organization’s members are required to give approval of a corporation’s independent expenditures, place an onerous burden on these organizations, which serves as a barrier to free speech and is in violation of the Supreme Court’s Citizens United decision and the First Amendment; and

WHEREAS, allowing shareholders to file a civil cause of action against a corporation in dispute of the corporation’s political activity functions as a legal threat designed to silence corporate speech; and

WHEREAS, bans on independent expenditures made by any organization that receives either state or federal funds from contracts, grants, incentives, or credits are an arbitrary and unnecessary limit on the right of organizations to exercise their First Amendment freedoms; and

WHEREAS, barring independent expenditures from domestic subsidiaries of foreign corporations would unnecessarily duplicate existing federal laws prohibiting foreign influence in federal, state, and local elections; and

WHEREAS, creating new bans on independent expenditures from domestic subsidiaries would strip First Amendment rights from American citizens; and

WHEREAS, disclosure requirements, which go further than what reasonably allows the public and the press to monitor elected officials and the government, such as those that require an organization to name its top funders, are both an affront to the right to private association and a danger to members and donors, who become vulnerable to harassment, intimidation, and retribution from those in disagreement with the position of the organization on an issue; and

WHEREAS, disclaimers in broadcast, radio, or print advertisements that require an organization to disclose its top funders or repeat the organization’s information a specified number of times impose an onerous burden on an organization, which has the effect of chilling speech since organizations are limited in the time or space they are given to express their message; and

THEREFORE BE IT RESOLVED that the American Legislative Exchange Council (ALEC) opposes efforts that are outlined above at the federal, state, and local level to undermine the Supreme Court’s decision in Citizens United v. Federal Election Commission.

Adopted by the Public Safety and Elections Task Force at the Annual Meeting, August 7, 2010.

Approved by the ALEC Board of Directors, September 19, 2010.