Citizens United Policy Recommendations
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Revision as of 18:52, February 9, 2010
This is a list of ideas being advanced regarding Citizens United. The ideas expressed here are from everywhere and do not necessarily reflect the views of the Sunlight Foundation.
How information should be gathered and disclosed
Agencies instructed to create web interfaces for filings by all appropriate entities. (i.e. end paper filings and the delays and obscurity they create -- see this for a lobbying example.)
In a database online, in real time, in machine-readable formats
The database shall be searchable, sortable, machine-readable, and downloadable in bulk
Each reporting entity should have a unique identifier that is use consistently government-wide.
The entity reporting must do so in a structured data format. All filings to agencies must be reported electronically. That means that the filing itself is digital, not PDF. It must be in digital format when transmitted to the agency.
The relevant agencies should develop an online and mobile tool to allow individuals/ entities to submit reports.
At the newly created website Ethics.gov, there should be a unified database that pulls together SEC, FEC, SOPR, House Clerk and other databases into one location.
All databases should use the same unique identifiers government-wide, so that information can be searched and sifted appropriately. Each government entity that establishes filing rules must comply with the creation of consistent universally-used identifiers.
Report-receiving agencies should work together to identify a common standard through which they will make available these reports/database. That standard should be open, non-propriety, and uniform across agencies.
FECA should be amended to require a disclaimer on all advertisements that identifies who paid for the ad and that entity's address or web site.
Disclaimer contents: The disclaimer should have to include a statement by the corporate sponsor’s CEO, by name, providing information about how much of the corporation’s general treasury was being expended in aggregate on the communication in question and certifying the CEO’s personal conclusion, as in Sarbanes-Oxley, that making the expenditure from general treasury funds, as opposed to making it through a corporate PAC, significantly advances the corporation’s business interest.SCOTUSBlog
Government activities and regulations should ensure that all carriers and service providers offer full access, without discrimination based on content, to political and issue speech and solicitations. This access should be available on the same basis and rates as the provider offers to its most favored commercial customers. Brookings
States and the federal government should provide free filing software. Brookings
The same anti-corruption rationale that may prohibit contractors from spending millions in favor of candidates requires a statutory prohibition on a negative advertising blitz. Bruce Ackerman.
Independent expenditure reporting requirements should be expanded to include all corporations and unions, not just "qualified corporations"
Any entity making an independent expenditure above a low aggregate amount must report those expenditures in a timely fashion
The term "making an independent expenditure" includes causing such an expenditure to be made, or giving money with the intent of another entity making an independent expenditure.
The entity making the independent expenditure shall be responsible for reporting the proximate source of the funds, the original source of the funds, and any intermediaries. In addition, the entity must report its name; an itemized list of expenditures, data, recipients, the issue or political race it seeks to effect; the amount spent; and so on.
Expedited reporting (24 hours) shall be required within 60 days of an election. Otherwise, entities have 48 hours to report.
To the extent corporations can pools their funds to make expenditures, these pools must be disclosed and all the contributors identified, including the amounts contributed.
Detailed reporting (e.g. 24 hours) should be required within 60 days of an election. Otherwise, entities should have 48 hours to report independent expenditures.
Corporations and unions should be allowed to lobby or make independent expenditures, but not both.
Reenact narrower corporate spending limits. Some are suggesting that a narrower ban, such as one that targets only wealthy corporations. I don't think that will fly. Rick Hasen
Entities making independent expenditures must file a timely certification that they did not collaborate with a candidate or party.
"tighten rules against coordination between campaigns and outside groups so that, for example, they could not hire the same advertising firms or consultants." Kirkpatrick in the New York Times.
Regulate public communications outside of the existing 90/120-day pre-election time periods when those communications promote, attack, support or oppose (“PASO”) a federal candidates and meet the existing “conduct” standards, which dictate the degree of interaction between a candidate and an outside spender that triggers regulation. Campaign Legal Center
A series of alternative as outlined and (but not all endorsed) by CLC in a rulemaking. They include:
For content standards outside the pre-election window:
- Adopting a content standard to cover public communications that promote, support, attack, or oppose a political party or a clearly identified federal candidate (the “PASO standard”);
- Adopting a content standard to cover public communications that are the “functional equivalent of express advocacy,” as articulated in FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 469-70 (2007);
- Clarifying that the existing content standard includes express advocacy as defined under both 11 CFR § 100.22(a) and (b); and
- Adopting a standard that pairs a public communication content standard with a new conduct standard (the “Explicit Agreement” standard).
And during the pre-election window
- Retaining the 120-day period;
*Increasing the time period to two years; or
* Returning the regulation’s coverage to the “current election cycle.”
And: Create of “safe harbors” for communications in support of 501(c)(3) organizations and for business and commercial
Finally, to improve accountability and enhance the role of political parties in competitive elections, we support unlimited coordinated party spending, but the spending must be paid out of funds raised from small donors. Brookings
Ban expenditures by corporations substantially owned by foreigners. (Nathaniel Persily in Slate)
Such federal legislation should, at a minimum, build on the disclosure and disclaimer requirements that the Court upheld by an 8-1 vote inCitizens United, requirements specifying that electioneering communications funded by anyone other than the candidate must disclose who is “responsible for the content of this advertising” and must display on screen “in a clearly readable manner” for at least four seconds the name and address or website of whoever funded the communication. Those requirements should not only be enlarged – a blink of an eye or a sip of beer would suffice to make a four-second display useless – but should also be made much more specific. The disclaimer should have to include a statement by the corporate sponsor’s CEO, by name, providing information about how much of the corporation’s general treasury was being expended in aggregate on the communication in question and certifying the CEO’s personal conclusion, as in Sarbanes-Oxley, that making the expenditure from general treasury funds, as opposed to making it through a corporate PAC, significantly advances the corporation’s business interest. (Laurence H. Tribe, Harvard Law)
The FEC shall require disclosure of bundled contributions and the identity of the bundler. The FEC should be amended to require all entities to file a separate schedule setting forth the name, address, and employer of each person who provided bundled contributions over a theshold amount during the covered period.
Disclose all contributions to 501(c)(4)s, both direct and funneled through shell or intermediary entities.
[Matching] rules for small donors (which convert a $20 donation into, say, $100 or $200) give politicians a reason to reach out to working-class and middle-class voters. While campaign finance has always tried to level down — restricting the ability of the monied to influence politics — the better strategy going forward may be to level up by giving everyday voters a bigger say. (Heather Gerkin, Yale Law)
By corporations and labor unions
The SEC should create an online database that contains all corporate filings regarding political activities.
Corporations must report within 24 hours all expenditures of corporate funds on political activities to the SEC. Each company must report all payments made to tax-exempt organizations that have political uses as one of their purposes. That report must also describe the political activities undertaken.
All senior management officials responsible for approving corporate political expenditures shall be identified in the SEC filing.
Each company must disclose its political spending guidelines.
To the extent that a payment is made to a trade association (or is ultimately intended to end there), the disclosure will include a pro-rating of the company's payments used for political purposes.
The Department of Labor shall require unions to disclose their expenditures regarding political activities.
Political expenditures include direct and indirect political contributions (including in-kind contributions) to candidates, political parties, or political organizations; independent expenditures; and the use of company time and resources for political activity.
Corporations and unions that receive government contracts or grants should be subject to heightened disclosure requirements regarding their activities.
Corporations and unions that receive government contracts or grants should be banned from engaging in certain activities.
Companies that do business with the federal government are banned from "endorsing or opposing a candidate for public office." The Washington Post
Companies with government contracts should be limited in the amount of political spending. Barnes and Eggen, Washington Post
A ban on campaign spending by companies that have received federal bailout money. AP
Ban electioneering expenditures for corporations that receive federal funds. Slate
Industries that require extensive government regulation, because of the risk to public safety or well-being if they operate without public supervision, being able to purchase politicians by bankrolling their campaigns (and thereby causing the politicians to deregulate regardless of the public interest). If it turns out that these regulated corporations can successfully do that by spending large sums independently of the politician's own campaign itself, and this corporate control of legislative decisions can be shown, then a statute targeted at the specific industries and setting an appropriate limit on the amount of spending by businesses in these industries (rather than banning any such spending altogether) might stand a chance of success even after Citizens United. Ned Foley
A potential problem of campaign spending by foreign-owned corporations, as well as foreign governments themselves. Although the Court today did not answer the question (because it had no occasion to do so), one must doubt very much that it would invalidate a carefully drawn statute designed to prevent foreign governments from spending money to influence U.S. elections. Yet if that is true, the line-drawing task begins. What about foreign corporations under the control of foreign governments? Ned Foley
Congress needs to go about carefully and prudently testing the limits of Citizens United. It should start with the most compelling categories of industries, the ones where the private sector is essentially undertaking a government function because the government has determined that private sector--as long as it operates under strict supervision--can perform the task more effectively than the government itself. In this context, Congress can say it is concerned not only about the risk of its being corrupted by the regulated entities, but insofar as the regulated entities are acting as surrogates or agents of the government itself, Congress wishes to avoid having an instrumentality of government authority takes sides in a congressional campaign. Ned Foley
IE committees should have to list the three or four largest donors in the disclaimer portion of their ads
One way to help ameliorate the problem of using pass-through orgs to make it more difficult to track funding is to require all IE committees to post a list of their donors online with the address of the site listed in the ad
The forms should also disclose which candidate the company/PAC is supporting.
End the soft money ban. Really? Why do that? Well Congress might consider it because now third party groups, which tend to be more unaccountable and negative than parties will have greater ability to run ads, with parties' hands tied by that part of McCain-Feingold not yet struck down. The parties won't like it. If the ban is lifted, the potential for corruption increases. Rick Hasen
Congress should amend FECA’s prohibition of the personal use of campaign funds to extend its reach to all political committees. FEC Legislative Recommendations
The FEC should develop an online database that contains all federal candidate campaign reports. See S. 1858 that requires Senators to file electronically. See FEC Legislative Recommendations.
Candidates must disclose their candidate campaign reports on a weekly basis, except at the end of the campaign when a 48-hour reporting rule applies.
Enact new public financing plans. If we worry about corporate dominance of money in the political process, how about trying to subsidize some campaigns through public financing. Today's opinion does not take public financing plans off the table, but an earlier Supreme Court opinion, FEC v. Davis, likely takes the most attractive portion of public financing plans out. Rick Hasen
Create matching funds for small individual contributions. [[This requires enacting legislation to repair the presidential public financing system and create a new system of congressional public financing, and to make small donors the key players in these systems by providing public funds to match small contributions. Democracy 21 strongly supports such legislation.|Democracy 21]]
We favor systems in which public money goes to participating candidates in the form of multiple matching funds, but only for small contributions. Brookings
Lower contribution limits should replace spending limits as a condition of eligibility for the receipt of public funds. There should also be a maximum ceiling on the amount of public money a candidate may receive. Brookings
As a supplement, we also support tax credits or rebates targeted at lower-income donors. Brookings
Public money should be available to candidates as soon as they qualify. Brookings
All paid political advertisements (TV, radio print, Internet) must be reported to the FEC and put into an online database. Data included is the text or video of the ad, where it was placed, how much it cost, when it aired, and who paid for it.
To the extent that an advertisement in placed by a media buyer, both the buyer and the ultimately candidate/campaign/corporation on whose behalf the ad was purchased must be disclosed. (For example, "I'm the CEO of X Corp. and I approved this ad." -Rep. Chris Van Hollen.)
Any radio or television station that broadcasts political advertisements should be required to file its advertising logs electronically with the FCC. This information should be available on a real-time basis through a database maintained by the FCC and posted on the Internet. Brookings
All lobbying activities (except those identified below) must be disclosed online and in real time. The definition of lobbyist under the LDA should be changed to eliminate the 20% threshold and include anyone who made a "significant contact." Significant contact is an oral, written, or electronic communication to a covered executive branch or legislative branch official that is made to influence an official action. Lobbyists under this definition also include Members of Board of Directors, Boards of Advisors, or others in similar positions for a corporation or union. Persons who earn below a certain threshold from lobbying, or work on behalf of an entity that incurs less than a theshold amount of lobbying related expenses, are not considered lobbyists under this new definition.
The following items must be reported to SOPR or the House Clerk: the date of the contact; a summary of the nature of the contact; who participated in the communication; summary of the specific action(s) requested of the covered official; the name of the lobbyist's employer or client.
Both lobbyists and covered officials are required to report contacts.
Any person who bundles contributions is considered a lobbyist and must support significant contacts.
Lobbyists must register online within 72 hours of making a lobbying contact or being hired to make a lobbying contact.
Lobbyists must report any significant contact with covered officials within 24 hours.
Lobbyists must report all contributions, including bundled contributions, within 72 hours of making the contribution.
A drastic approach might be to expand the concept of questionable vote-buying, by requiring a more detailed public accounting of how lawmakers vote in relation to lobbyists with whom they deal directly and in relation to the industries who may benefit from legislative favors that flow out of the lobbyists’ efforts. (Lyle Denniston in SCOTUSblog)
Shareholders should be required to vote to have treasury funds used for campaign expenditures. (Nathaniel Persily in Slate)
Congress may legitimately act under the Commerce Clause to enhance the efficacy of each shareholder’s ability to ensure that his or her investment is not deployed to advance or obstruct the election of particular candidates to federal (or, indeed, state) office contrary both to that shareholder’s own wishes and, more importantly in this context, to the corporation’s business interests. (Laurence H. Tribe, Harvard Law)
Allow a shareholder to opt out (how exactly is unclear) of corporate political expenditures. (Bainbridge mentions this idea without endorsing it)
Consequently, the laws should be changed to give shareholders more say about the use of their investments in politics. We suggest the following two changes to federal securities laws: 1. Publicly-traded companies should give their shareholders notice of political spending on a regular basis and 2. Corporations should be required to get shareholder authorization before a corporation may spend money on politics. (This is required under British corporate law.) (Ciara Torres-Spelliscy of the Brennan Center)(See report)
Any corporate decision or expenditure that might affect the American political process, or the rules governing corporate behavior, which is made in this State or would affect the political process in this State, must be approved by a majority vote of every human corporate stakeholder who is a US citizen and might be affected by the decision or expenditure, including directors, managers, employees, human investors (or the human beneficiaries of institutional investors), customers, suppliers and taxpayers who might have to pay additional taxes to replace taxes corporate taxpayers avoid or to clean up messes that such decision might allow. The human beings involved may delegate this decision to elected representatives, including the board of directors of a corporation, so long as the elections of those representatives are held on a fair basis according to democratic norms including one human one vote, limited terms of office, and enfranchisement of all adult humans who are seriously affected by the representatives' actions. (Daniel Greenwood, Hofstra Univ., in ACSblog)
Congress might respond to the Citizens United ruling by passing a law to require corporations operating in interstate commerce to be federally chartered, and decreeing that, as such, they are not “persons” with constitutional rights. (Lyle Denniston in SCOTUSblog)
Adopt shareholders rights laws similar to that in the UK. UK Electoral Commission.
it seems plain that Congress may legitimately act under the Commerce Clause to enhance the efficacy of each shareholder’s ability to ensure that his or her investment is not deployed to advance or obstruct the election of particular candidates to federal (or, indeed, state) office contrary both to that shareholder’s own wishes and, more importantly in this context, to the corporation’s business interests. (perhaps by lawsuit) SCOTUSBlog
The creation of a federal cause of action for corporate waste.... For example, it could provide a greater incentive for suit, by offering statutory damages or treble damages (i.e., reimbursement of three times the challenged expenditure, part of which reimbursement would go directly to the plaintiffs rather than into the corporation’s coffers), as well as attorneys’ fees, and it could provide better deterrence by imposing individual liability for the corporate officers authorizing the improper political expenditure. And the “business judgment” rule making such cases notoriously difficult to bring under state law could be replaced with a rule less deferential to management and more focused on the existence of a convincing justification for using general treasury funds as such rather than relying entirely on PAC funds contributed by people with politics in mind. SCOTUSBlog
Federal law currently prohibits national banks from making independent expenditures, but the validity of that ban is unclear under the language of the Supreme Court’s holding. The majority opinion concludes with the holding that “[t]he judgment of the District Court is reversed with respect to the constitutionality of 2 U.S.C. §441b’s restrictions on corporate independent expenditures.” Slip op. at 57. Given that the national bank expenditure prohibition is part of 2 U.S.C. §441b, a strict reading of this holding would suggest that banks are now as free as other corporations to make independent expenditures. However, the special characteristics of banks created under acts of Congress could support arguments that national banks are closer akin to government-sponsored enterprises like Fannie Mae or even the Export-Import Bank, and thus should be left subject to broader controls on their political activities to avoid having government agencies themselves take sides in elections to government office. Caplan & Drysdale
Citizen and criminal penalties for violations of these laws should be significantly increased.
Persons/corporations that knowingly violate election laws should be subject to civil damages that are multiples of their expenditures/contributions.
Persons who direct corportations/unions to violate election law should be subject to serious criminal penalties, including jailtime.
Funding for enforcement should be significantly increased.
The DOJ should play a more active role in enforcing these laws.
Allow qui tam lawsuits: If a citizen or journalist or anyone else finds evidence of collusion between a campaign and a corporation, he gets triple damages--triple the sum the company was paying for its ad buy.
Congress should revise the prohibitions on fraudulent misrepresentation of campaign authority to encompass all persons purporting to act on behalf of candidates and real or fictitious political committees and political organizations. In addition, Congress should remove the requirement that the fraudulent misrepresentation must pertain to a matter that is “damaging” to another candidate or political party. FEC Legislative Recommendations.
Congress should delete the exclusion of the Federal Election Commission from eligibility for the Senior Executive Service under the Civil Service Reform Act of 1978 (as amended by the Federal Election Campaign Act Amendments of 1979). See Public Law 96187, § 203, 93 Stat. 1339, 1368 (1980), codified at 5 U.S.C. § 3132(a)(1)(C). FEC Legislative Recommendations
Congress should require political committees to include their FEC identification number on all committee-to-committee contribution checks issued by them and to disclose the FEC identification number of other political committees when itemizing contributions received from those committees on schedule A and contributions disbursed on schedule B of FEC Form 3, Form 3X, or 3P. FEC 2007 Legislative Recommendations.
A proportional filing fee should be imposed, e.g., for every $100,000 spent by a single organization, a fee of $1,000 imposed -- to pay the costs of maintaining the disclosure system.
Filing fees should be split between agencies that receive the filings, Ethics.gov, and third-party groups (non-profits) that make the data more accessible to the public.
Because corporations seeking to take advantage of the Citizen’s United decision are likely to direct funds through tax-exempt associations that are organized under Section 501(c) of the federal tax code, we expect increased attention on compliance with the Internal Revenue Service rules governing such entities. It is also possible that there will be efforts by campaign finance reform advocates to use the tax laws as an end-run around Citizen’s United and a means of curtailing corporate speech. Covington and Burling
"perhaps [Congress] could change the tax code so as to reduce the incentives of corporations to spend money in political campaigns" Nathaniel Persily in Slate
The 527 rules, which charge a tax if an organization doesn't disclose, may not work anymore. These rules, however, pre-date the upholding of disclosure provisions and should probably be repealed anyway. There are significantly less advantages now to setting up a 527. I had previously written an article involving the consequences of trying to do electioneering through a taxable entity. In many cases, there will be significant advantages in using a taxable instead of a tax-exempt entity. See Political Advocacy and Taxable Entities: Are They the Next Loophole, 6 First. Amend. Law. Rev. 41 (2007). Available at SSRN: http://ssrn.com/abstract=1020421 Donald Tobin
For example, we know IRC Section 527 nonprofit corporations are exempt from tax for electioneering expenditures.
And we know IRS Section 501(c)(3) nonprofit corporations (charities) are prohibited by statute from electioneering
But Section 501 (c)(4) (advocacy like NRA); Section 501(c)(5) (unions); and Section 501(c)(6) (Chamber of Commerce/trade associations) nonprofit corporations must pay an excise tax at the highest corporate rate, 35%, on electioneering expenditures.
And political expenditures by profit corporations are also subject to tax.
Could Congress change the tax code to provide that electioneering expenses by a corporation would be treated as in-kind dividends to shareholders? Thus the expenses not only would be nondeductible to the corporation but would also be taxable income to the shareholders. That would yield the same financial result as if the corporation paid a dividend and the shareholder used the dividend to fund electioneering. The collective feature of the corporation being able to speak for its owners would be protected, but the tax advantage (or arguable tax advantage) of the shareholders being permitted to do so with dollars shielded from individual taxation would be eliminated. Mark Scarberry
"block companies from deducting election spending as a business expense on their taxes" Bravin and Mullins, Wall Street Journal
Very useful analysis of the tax implications of Citizens United. No recommendations in it, but may be food for thought. Washington Park
Excellent suggestions on how the state of Minnesota could respond. MinnPost
"Justice O'Connor has become increasingly vocal in recent years about the need to do away with state judicial elections." New York Times Blog.
"states could condition the granting of a corporate charter on a promise to disengage from campaigns." Persily in Slate.
A constitutional amendment. Are you kidding? A supermajority of Congress and the States to put limits on corporate spending. Not in my lifetime.Rick Hasen
Free Speech for People Constitutional Amendment - Petition by Public Citizen
Legislation Introduced in Response to Citizens United 1/20/2010 to 2/09/2010
Proposing an amendment to the Constitution of the United States prohibiting corporations and labor organizations from using operating funds for advertisements in connection with any campaign for election for Federal office. H.J. Res 68
To require the approval of a majority of a public company's shareholders for any expenditure by that company to influence public opinion on matters not related to the company's products or services. HR 4487
To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations in which foreign principals have an ownership interest. HR 4510
To amend the Federal Election Campaign Act of 1971 to prohibit corporations which employ or retain registered lobbyists from making expenditures or disbursements for electioneering communications under such Act, and for other purposes. HR 4511
To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations which are owned or controlled by foreign principals, to increase the civil penalties applicable to foreign nationals who violate the ban, and for other purposes. HR 4517
To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations which are owned or controlled by foreign principals. HR 4522
To amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporations whose shareholders include any foreign principals. HR 4523
A bill to amend the Federal Election Campaign Act of 1971 to apply the ban on contributions and expenditures by foreign nationals to domestic corporation which are owned or controlled by foreign principals. S 2954
To amend the Federal Election Campaign Act of 1971 to require certain campaign-related communications paid for by a corporation or labor organization to include a statement identifying the chief executive officer of the corporation or the president of the labor organization, and for other purposes. HR 4527
To amend the Securities Exchange Act of 1934 to require the express authorization of a majority of shareholders of a public company for certain political expenditures by that company, and for other purposes. HR 4537
To amend the Federal Election Campaign Act of 1971 to extend the ban on election activity by foreign nationals to election activity by domestic corporations which are subsidiaries of foreign principals. HR 4540
To prohibit entities from using Federal funds to contribute to political campaigns or participate in lobbying activities. HR 4550
A bill to amend the Federal Election Campaign Act of 1971 to protect Federal, State, and local elections from the influence of foreign nationals. S 2959
Proposing an amendment to the Constitution of the United States permitting Congress and the States to regulate the expenditure of funds by corporations engaging in political speech. HJ Res 74
To amend the Federal Election Campaign Act of 1971 to require certain campaign-related communications which are paid for by certain tax-exempt organizations or political organizations to include a statement naming their five largest donors, and for other purposes. HR 4583
To amend the Internal Revenue Code of 1986 to require that certain entities exempt from taxation (including business leagues and chambers of commerce) disclose sources and amounts of contributions. HR 4605
A bill to require notification to and prior approval by shareholders of certain political expenditures by publicly traded companies, and for other purposes. S 3004