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Democrats Preview Citizens United Bill

February 12, 2010 - by Eric Naing

While others have proposed unrealistic constitutional amendments to counter the Citizens United decision, two top Democrats have unveiled the party’s official response limiting the influence of corporate money in campaigns.

A draft of the proposed legislation introduced yesterday by Sen. Chuck Schumer [D, NY] and Rep. Chris Van Hollen [D, MD-8] can be seen here via Firedoglake. The bill bans the following entities from spending money on U.S. elections:

  • companies with at least 20 percent foreign ownership

  • government contractors

  • companies that received and have not paid back TARP funds

The bill also:
  • requires CEOs to appear on camera and say they approve the ad their company is funding

  • requires more disclosure of political spending from corporations, unions and 527s

  • provides a reduced ad cost and equal airtime for candidates facing a corporate ad buy

  • prevents corporations from coordinating ad spending with candidates and political parties

Schumer and Van Hollen hope to attract some Republican support but that looks like a tough sell. GOP leaders such as Sen. Mitch McConnell [R, KY] and Rep. John Boehner [R, OH-8] have already openly praised the Supreme Court’s decision as a victory for free speech.

And at least one critic of the Citizens United decision is already criticizing the proposal.

Transparency advocate and Harvard Professor Lawrence Lessig says the bill either won’t work or will just be struck down by the Supreme Court. He points to two provisions in particular that he believes will attract the attention of the Court:

(1) Ban foreign corporations from influencing elections.

This is a fine idea. Problem is that it is completely unclear how under the Supreme Court’s reasoning this change would be constitutional. The Court said the First Amendment doesn’t care who is trying to exercise the right to speak — that the First Amendment simply limits the government’s power to regulate speech. So how will it find foreigners have less freedom than corporations?

(2) Stop government contractors or TARP recipients who haven’t repaid from political spending.

This selective regulation is Supreme Court bait: it wasn’t imposed on TARP recipients when they took the money, and my bet is the Court views the government contractors limitation as too broad.

Lessig’s preferred response is to instead pass the Fair Elections Now Act.

The plan for Democrats is to introduce the bill after Congress returns from its upcoming Presidents Day recess. When the official language is available, we’ll highlight here at OpenCongress.

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