State-Level Ramifications of the Citizens United Decision

In January 2010, the U.S. Supreme Court issued its Citizens United v. Federal Election Commission opinion,[1] which changed the laws that determine how corporations participate in the political process. Specifically, Citizens United overturned laws that prevented corporations from using their own funds for advertisements that support or oppose candidates running for elected office. A corporation can now spend unlimited monies to run advertisements that support candidates whose platforms it favors and to oppose candidates whose stated positions are contrary to its own interests.


On its face, the decision did not concern health, but its ramifications will likely have significant impacts for health policy, the delivery of health care, and public health initiatives.[2],[3] For example, corporations can examine incumbent legislators’ voting records on particular issues (e.g., menu-labeling requirements for restaurants) and, if candidates have voted against their interests, corporations can finance advertisements against their re-election. Similarly, corporations can now fund advertisements that support the re-election of candidates with voting records that support their interests. The potential for well-funded political advertisements may dramatically affect some legislators’ votes on important health issues, particularly if they seek to avoid a series of negative corporation-funded advertisements in the final weeks of their re-election campaigns.

In recent months, the Citizens United decision—which concerned regulatory actions taken by the federal government—has raised potential concerns in many U.S. states. Approximately half of the states have laws that entirely prohibit or partially restrict corporations’ ability to fund advertisements in advance of political elections. Several states initially considered repealing these laws, in anticipation of fallout from the Supreme Court’s Citizens United opinion.[4] The National Conference of State Legislatures (NCSL) has noted that “it is likely that states will choose not to enforce these laws [that prevent corporations from funding political advertisements], which has the potential to radically change the political landscape.”[5]

Since 2010, several states have indeed amended or repealed laws that seemed to conflict with Citizens United. For example, according to NCSL, Alaska, Arizona, Connecticut, Iowa, Minnesota, North Carolina, South Dakota, and West Virginia have repealed laws that prevented corporations from directly funding political advertisements. In addition, several state courts have heard challenges to their state laws that prohibit corporation-funded political advertisements.

National attention turned to Montana this September, when its Supreme Court heard oral arguments regarding the constitutionality of its century-long ban on political advertisements funded by corporations.[6] The case began when several corporations—Western Tradition Partnership, Inc., Champion Painting, Inc., and Montana Shooting Sports Association, Inc.—brought a lawsuit in which they alleged that the state’s Corrupt Practices Act of 1912 was unconstitutional in light of the U.S. Supreme Court’s Citizens United decision. The act states, “A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”[7]

The state of Montana presented several arguments in favor of the constitutionality of the Corrupt Practices Act. The state’s legal team also explained that the act had been drafted in response to “early corporate domination of state government,”[8] specifically “to limit the inordinate influence of the copper mining companies and their owners, known as the Copper Kings, over Montana politics. . .”[9] In October 2010, a lower Montana court held that the Corrupt Practices Act was unconstitutional after the Citizens United decision.

Activists rally for a constitutional amendment overturning the Citizens United Supreme Court decision on Friday, January 21, 2011 in Washington, DC

Shortly after the decision was released, Montana’s Attorney General, Steve Bullock, issued a statement in which he expressed his intention to appeal the ruling. He explained that:

“This isn’t just about our history: two former secretaries of state and other experts in the field testified that an influx of corporate spending will corrupt the political process and drown out the voices of everyday Montanans. . . While I have a great deal of respect for the district court, the people of Montana have long said that its citizens, not corporations, should decide the outcome of elections.”[10]

In briefs submitted in anticipation of the case’s appellate hearing, Bullock, representing the state of Montana, argued that under the Corrupt Practices Act, corporations are still able to participate in the state’s political processes. The brief stated that,

“No other corporations have challenged Montana’s law in one hundred years.  Still, one would have to ignore the record—and Montana history and politics—to suggest. . . that corporations have been silenced for the past century. To the contrary, corporations are active participants in Montana politics through accountable means such as the political committee requirements applicable to other organizations that seek to associate for campaign purposes. It is undisputed that within this system, corporations large and small are heavily involved in Montana politics through expenditures, contributions by managers, and lobbying.”[11]

In response, the plaintiffs, led by Western Tradition Partnership, argued that the Corrupt Practices Act “expressly prohibits corporations from making independent expenditures at a critical time during our election process; i.e., the campaign for political office. Furthermore, even if [corporate] managers can make expenditures, the manager is not the corporation, just as a PAC [political action committee] is not the corporation.”[12] Numerous organizations submitted amicus (i.e., friend of the court) briefs in anticipation of this fall’s oral argument.[13] The oral argument before Montana’s Supreme Court occurred on Sept. 21, 2011, and the court will likely announce its decision within the next few months.[14]

Because states have broad powers to act to protect the health, safety, and welfare of their residents, they often serve as public health innovators. The extent to which states choose to pursue efforts to protect and promote the public’s health often depends on the composition of the state’s legislature, and the priorities of its elected members. In the period leading up to an election, the public receives information about political candidates through the media, which includes advertisements that support or oppose particular individuals. If Montana’s Corrupt Practices Act is overturned, corporations will have an expanded ability to fund these types of advertisements, which may dramatically influence who Montanans vote into office.

Jennifer Pomeranz is the Director of Legal Initiatives at the Rudd Center for Food Policy & Obesity at Yale University. She publishes and speaks on issues related to marketing to children, regulating unhealthy products, labeling, weight bias, and the government’s role in obesity and food policy.



References

[1] Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).

[2] Rutkow L, Vernick JS, Teret SP, The potential health effects of Citizens United, New Eng J Med 2010;362:1356-1358.

[3] Wiist WH, Citizens United, public health, and democracy: the Supreme Court ruling, its implications, and proposed action, Am J Public Health 2011;101:1172-1179.

[4] National Conference of State Legislatures, State laws affected by Citizens United, 2011, at http://www.ncsl.org/default.aspx?tabid=19607#laws.

[5] National Conference of State Legislatures, Life after Citizens United, 2011, at http://www.ncsl.org/default.aspx?tabid=19607#intro.

[6] Charles E. Johnson, Corporate political spending goes before Montana Supreme Court Wednesday, Missoulian, Sept. 19, 2011.

[7] Mont. Code Ann. § 13-35-227 (2010).

[8] Brief of Appellant at 2, Western Tradition Partnership, Inc., et al. v. Montana Attorney General et al., No. DA 11-0081 (Apr. 15, 2011).

[9] Charles E. Johnson, Judge throws out Montana’s ban on corporate campaign spending, Missoulian, Oct. 19, 2010.

[10] Office of the Montana Attorney General, Bullock releases statement on corporate electioneering case, Oct. 18, 2010.

[11] Appellant Reply and Answer to Cross Appeal at 9, Western Tradition Partnership, Inc., et al. v. Montana Attorney General et al., No. DA 11-0081 (June 10, 2011).

[12] Appellees and Cross-Appellants’ Reply Brief at 9, Western Tradition Partnership, Inc., et al. v. Montana Attorney General et al., No. DA 11-0081 (July 1, 2011).

[13] Charles E. Johnson, Corporate political spending goes before Montana Supreme Court Wednesday, Missoulian, Sept. 19, 2011.

[14] Charles E. Johnson, Montana Supreme court grills attorney general on corporate spending ban, Missoulian, Sept. 21, 2011.

Image Credits:

1.    Ilaannaa via Flickr.

2.    Public Citizen via Flickr