Citizens United and the States

7/21/2016

house of money

The U.S. Supreme Court's ruling in Citizens United v. FEC  on Jan. 21, 2010, has had a profound effect on the laws governing corporate political activity. The Court ruled that the federal government may not prohibit direct corporate and union spending on advertising for candidates' elections. While the ruling does not directly affect state laws, at the time of the Citizens United decision there were 24 states that prohibited or restricted corporate and/or union spending on candidate elections. Many of these states have repealed or re-written these laws to avoid legal challenges under the new standard set by Citizens United.

The Citizens United decision is part of a series of recent Supreme Court decisions on campaign finance. This page focuses only on Citizens United and the impact the case has had on contributions limits as applied to corporations and unions.

To see brief descriptions of other pertinent decisions, visit NCSL's webpage, Campaign Finance and the Supreme Court

State Laws Affected by Citizens United

At the time of the Citizens United decision, 24 states prohibited either corporations or unions from making political contributions.  Of those states, nine just banned corporate contributions, one just banned union contributions, and ten banned both corporate contributions and union contributions.

After Citizens United, state limitations on corporate contributions were either repealed or struck down by the courts in fourteen states: Alaska, Arizona, Colorado, Connecticut, Iowa, Kentucky, Minnesota, Montana, North Carolina, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin. State limitations on union contributions were struck down or repealed in seven states: Alaska, Arizona, Colorado, North Carolina, South Dakota, Texas, and Wisconsin.

Tennessee and Wisconsin repealed their pre-existing laws and enacted new limitations that stopped short of an outright ban on political contributions. Tennessee passed a new law that banned corporate contributions made directly to candidates but permitted corporations to make independent expenditures, and Wisconsin passed a similar law that prohibits corporations and unions from contributing to candidate committees but allows them to contribute to independent expenditures and referendum committees.

Currently, seven states have statues that ban both corporate contributions and union contributions.  In addition to those states, two states just ban corporate contributions and one state just bans union contributions. While these laws have not yet been struck down by the courts or repealed by their legislatures, they potentially could be unenforceable.  

State

Corporate Ban

Union Ban

Alabama

Corporations cannot fund ads directly under their own name, but must pay for them through a PAC; corporations cannot contribute to a PAC

(AG Opinion 82-088, NOTE: this opinion applied specifically to spending on ads for/against referenda; not entirely clear that it applies to ads for/against candidates too)) (§10-2A-70 and 10-2A-70.1)

None.

Alaska

(Repealed; 2010 Alaska Sess. Laws, Chap. 36)

Only an individual, group, or nongroup entity may make an independent expenditure supporting or opposing a candidate (the definitions of these terms exclude corporations and unions) (§15.13.067, 15.13.135)

(Repealed; 2010 Alaska Sess. Laws, Chap. 36)

Only an individual, group, or nongroup entity may make an independent expenditure supporting or opposing a candidate (the definitions of these terms exclude corporations and unions) (§15.13.067, 15.13.135)

Arizona

(Repealed; 2010 Ariz. Sess. Laws, Chap. 4)

It shall be unlawful for any corporation, organized or doing business in this state, to make any contribution of money or anything of value for the purpose of influencing any election or official action. (Const. Art. 14, §18) (Repealed; 2016 Ariz. Sess. Laws, Ch. 79)

It is unlawful for a corporation, a limited liability company, or a labor organization to make any contribution of money or anything of value for the purpose of influencing an election (§16-919)

(Repealed; 2016 Ariz. Sess. Laws, Ch. 79)

State law has a specific list of corporate expenditures that are not considered to be political contributions prohibited by law, and advertising for/against candidates is not included in this list (§16-920)

(Repealed; 2010 Ariz. Sess. Laws, Chap. 4)

It shall be unlawful for any corporation, organized or doing business in this state, to make any contribution of money or anything of value for the purpose of influencing any election or official action. (Const. Art. 14, §18)

(Repealed; 2016 Ariz. Sess. Laws, Ch. 79)

It is unlawful for a corporation, a limited liability company, or a labor organization to make any contribution of money or anything of value for the purpose of influencing an election (§16-919)

(Repealed; 2016 Ariz. Sess. Laws, Ch. 79)

State law has a specific list of corporate expenditures that are not considered to be political contributions prohibited by law, and advertising for/against candidates is not included in this list (§16-920)

Colorado

(Both of the following provisions were held unconstitutional by the Colorado Supreme Court on March 22, 2010.)

It shall be unlawful for a corporation or labor organization to make contributions to a candidate committee or a political party, and to make expenditures expressly advocating the election or defeat of a candidate; except that a corporation or labor organization may establish a political committee or small donor committee which may accept contributions or dues from employees, officeholders, shareholders, or members.

(Const. Art. XXVIII, §3(4))

Notwithstanding any section to the contrary, it shall be unlawful for a corporation or labor organization to provide funding for an electioneering communication; except that any political committee or small donor committee established by such corporation or labor organization may provide funding for an electioneering communication. (Const. Art. XXVII, §6(2))

(Both of the following provisions were held unconstitutional by the Colorado Supreme Court on March 22, 2010.)

It shall be unlawful for a corporation or labor organization to make contributions to a candidate committee or a political party, and to make expenditures expressly advocating the election or defeat of a candidate; except that a corporation or labor organization may establish a political committee or small donor committee which may accept contributions or dues from employees, officeholders, shareholders, or members.

(Const. Art. XXVIII, §3(4))

Notwithstanding any section to the contrary, it shall be unlawful for a corporation or labor organization to provide funding for an electioneering communication; except that any political committee or small donor committee established by such corporation or labor organization may provide funding for an electioneering communication. (Const. Art. XXVII, §6(2))

Connecticut

(Repealed by HB 5471)

No business entity shall make any contributions or expenditures to, or for the benefit of, any candidate's campaign for election to any public office or position subject to this chapter or for nomination at a primary for any such office or position, or to promote the defeat of any candidate for any such office or position.(§9-613)

None.

Iowa

(Repealed by SF 2354, 2010)

It is unlawful for an insurance company, savings and loan association, bank, credit union, or corporation to contribute any money, property, labor, or thing of value, directly or indirectly, to a committee, or to expressly advocate that the vote of an elector be used to nominate, elect, or defeat a candidate for public office (§68A.503)

None.

Kentucky

(In the 2016 federal district court case Protect My Check, Inc. v. Dilger the court held that the corporate political contribution ban was unconstitutional to the extent that it did not apply equally to unions.)

No corporation organized or authorized to do business in this state or in another state shall, by itself or by or through an officer, agent, attorney, or employee, subscribe, give, procure or furnish, or afterwards reimburse or compensate in any way any person who has subscribed, given, procured, or furnished, any money, privilege, favor, or other thing of value to any political or quasi-political organization, or any officer or member thereof, to be used by such organization for the purpose of aiding, assisting, or advancing any candidate for public office in this state in any way whatever. (§121.035)

None.

Massachusetts

No corporation carrying on the business of a bank, trust, surety indemnity, safe deposit, insurance, railroad, street railway, telegraph, telephone, gas, electric light, heat, power, canal, aqueduct, or water company, no company having the right to take land by eminent domain or to exercise franchises in public ways, granted by the commonwealth or by any county, city or town, no trustee or trustees owning or holding the majority of the stock of such a corporation, no business corporation incorporated under the laws of or doing business in the commonwealth and no officer or agent acting in behalf of any corporation mentioned in this section, shall directly or indirectly give, pay, expend or contribute, or promise to give, pay, expend or contribute, any money or other valuable thing for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding or promoting or antagonizing the interest of any political party. (Ch. 55 §8)

None.

Michigan

A corporation, joint stock company, domestic dependent sovereign, or labor organization shall not make a contribution or expenditure unless it is a corporation that was formed for political purposes. (§169.254)

A corporation, joint stock company, domestic dependent sovereign, or labor organization shall not make a contribution or expenditure. (§169.254)

Minnesota

(Repealed; 2010 Minn. Laws, Chap. 397)

A corporation may not make an independent expenditure or offer or agree to make an independent expenditure to promote or defeat the candidacy of an individual for nomination, election, or appointment to a political office. For the purpose of this subdivision, "independent expenditure" means an expenditure that is not made with the authorization or expressed or implied consent of, or in cooperation or concert with, or at the request or suggestion of, a candidate or committee established to support or oppose a candidate. (§221B.15(3))

None.

Montana

(The U.S. Supreme Court   held in the 2012 case American Tradition Partnership, Inc. v. Bullock that this Montana law was unconstitutional and the case was not distinguished from Citizens United.)

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. (§13-35-227)

None.

New Hampshire

None.

(Note that §664:4(I) was held unconstitutional in 2000.)

No contribution, whether tangible or intangible, shall be made to a candidate, a political committee, or political party, or in behalf of a candidate or political committee or political party, directly or indirectly, for the purpose of promoting the success or defeat of any candidate or political party at any state primary or general election… By any labor union or group of labor unions, or by any officer, director, executive, agent or employee acting in behalf of such union or group of unions; or by any organization representing or affiliated with any such union or group of unions, or by any officer, director, executive, agent or employee acting in behalf of such organization. (§664:4(III))

North Carolina

(Repealed by HB 748, 2010)

No prohibited source may make any disbursement for the costs of producing or airing any electioneering communication. No individual, committee, association, or any other organization or group of individuals, including but not limited to, a political organization (as defined in section 527(e)(1) of the Internal Revenue Code of 1986), which has received any funds or anything of value whatsoever from a prohibited source may make any disbursement for the costs of producing or airing any electioneering communication, unless that individual, committee, association, or other organization or group of individuals maintains a segregated bank account that consists of funds provided solely by entities other than prohibited sources. (§163-278.82)

The term "prohibited source" means any corporation, insurance company, labor union, or professional association. (§163-278.80(4))

...it shall be unlawful for any corporation, business entity, labor union, professional association or insurance company directly or indirectly: (1) To make any contribution to a candidate or political committee or to make any expenditure to support or oppose the nomination or election of a clearly identified candidate  (§163-278.19(a)(1))

(Repealed by HB 748, 2010)

No prohibited source may make any disbursement for the costs of producing or airing any electioneering communication. No individual, committee, association, or any other organization or group of individuals, including but not limited to, a political organization (as defined in section 527(e)(1) of the Internal Revenue Code of 1986), which has received any funds or anything of value whatsoever from a prohibited source may make any disbursement for the costs of producing or airing any electioneering communication, unless that individual, committee, association, or other organization or group of individuals maintains a segregated bank account that consists of funds provided solely by entities other than prohibited sources. (§163-278.82)

The term "prohibited source" means any corporation, insurance company, labor union, or professional association. (§163-278.80(4))

...it shall be unlawful for any corporation, business entity, labor union, professional association or insurance company directly or indirectly: (1) To make any contribution to a candidate or political committee or to make any expenditure to support or oppose the nomination or election of a clearly identified candidate  (§163-278.19(a)(1))

North Dakota

A corporation, cooperative corporation, limited liability company, or association may not make a direct contribution for any political purpose. (§16.1-08.1-03.3(1)(d))

A corporation, cooperative corporation, limited liability company, or association may not make a direct contribution for any political purpose. (§16.1-08.1-03.3(1)(d))

(Note that the definition of "association" includes unions - 16.1-08.1-01.1(1))

Ohio

No corporation, no nonprofit corporation, and no labor organization, directly or indirectly, shall pay or use, or offer, advise, consent, or agree to pay or use, the organization’s money or property for or in aid of or opposition to a political party, a candidate for election or nomination to public office, a political action committee including a political action committee of the corporation or labor organization, a legislative campaign fund, or any organization that supports or opposes any such candidate, or for any partisan political purpose.. (§3599.03)

No person shall make, during the thirty days preceding a primary election or during the thirty days preceding a general election, any broadcast, cable, or satellite communication that refers to a clearly identified candidate using any contributions received from a corporation or labor organization.   (§3517.1011(H))

No corporation, no nonprofit corporation, and no labor organization, directly or indirectly, shall pay or use, or offer, advise, consent, or agree to pay or use, the organization’s money or property for or in aid of or opposition to a political party, a candidate for election or nomination to public office, a political action committee including a political action committee of the corporation or labor organization, a legislative campaign fund, or any organization that supports or opposes any such candidate, or for any partisan political purpose.. (§3599.03)

No person shall make, during the thirty days preceding a primary election or during the thirty days preceding a general election, any broadcast, cable, or satellite communication that refers to a clearly identified candidate using any contributions received from a corporation or labor organization.   (§3517.1011(H))

Oklahoma

A corporation or labor organization shall not make a contribution or an expenditure or an independent expenditure to, or for the benefit of, a candidate or committee in connection with an election or for any electioneering communication. (Tit. 74, Ch. 62, §257:10-1-2(d)(2))

A corporation or labor organization shall not make a contribution or an expenditure or an independent expenditure to, or for the benefit of, a candidate or committee in connection with an election or for any electioneering communication. (Tit. 74, Ch. 62, §257:10-1-2(d)(2))

Pennsylvania

It is unlawful for any National or State bank, or any corporation, incorporated under the laws of this or any other state or any foreign country or any unincorporated association, except those corporations formed primarily for political purposes or as a political committee, to make a contribution or expenditure in connection with the election of any candidate or for any political purpose whatever except in connection with any question to be voted on by the electors of this Commonwealth. (Section 1633 25 P.S. §3253)

It is unlawful for any National or State bank, or any corporation, incorporated under the laws of this or any other state or any foreign country or any unincorporated association, except those corporations formed primarily for political purposes or as a political committee, to make a contribution or expenditure in connection with the election of any candidate or for any political purpose whatever except in connection with any question to be voted on by the electors of this Commonwealth. (Section 1633 25 P.S. §3253)

Rhode Island

It shall be unlawful for any corporation, whether profit or non-profit, domestic corporation or foreign corporation or other business entity to make any campaign contribution or expenditure to or for any candidate, political action committee, or political party committee, or for any candidate, political action committee, or political party committee to accept any campaign contribution or expenditure from a corporation or other business entity. (§17-25-10.1(h))

It shall be unlawful for any corporation, whether profit or non-profit, domestic corporation or foreign corporation or other business entity to make any campaign contribution or expenditure to or for any candidate, political action committee, or political party committee, or for any candidate, political action committee, or political party committee to accept any campaign contribution or expenditure from a corporation or other business entity. (§17-25-10.1(h))

"Business entity" means any corporation, whether for profit or not for profit, domestic corporation or foreign corporation, as defined in § 7-1.2-106, financial institution, cooperative, association, receivership, trust, holding company, firm, joint stock company, public utility, sole proprietorship, partnership, limited partnership, or any other entity recognized by the laws of the United States and/or the state of Rhode Island for the purpose of doing business. The term "business entity" shall not include a political action committee organized pursuant to this chapter or a political party committee or an authorized campaign committee of a candidate or office holder. (§17-25-3(1))

South Dakota

(Repealed by HB 1053, 2010)

No organization may make a contribution to a candidate committee, political action committee, or political party or make an independent expenditure expressly advocating the election or defeat of a candidate. (§12-27-18)

"Organization," any business corporation, limited liability company, nonprofit corporation, limited liability partnership, limited partnership, partnership, cooperative, trust, business trust, association, club, labor union, collective bargaining organization, local, state, or national organization to which a labor organization pays membership or per capita fees, based upon its affiliation and membership, trade or professional association that receives its funds from membership dues or service fees, whether organized inside or outside the state, any entity organized in a corporate form under federal law or the laws of this state, or any group of persons acting in concert which is not defined as a political committee or political party in this chapter (§12-27-1(16))

(Repealed by HB 1053, 2010)

No organization may make a contribution to a candidate committee, political action committee, or political party or make an independent expenditure expressly advocating the election or defeat of a candidate. (§12-27-18)

"Organization," any business corporation, limited liability company, nonprofit corporation, limited liability partnership, limited partnership, partnership, cooperative, trust, business trust, association, club, labor union, collective bargaining organization, local, state, or national organization to which a labor organization pays membership or per capita fees, based upon its affiliation and membership, trade or professional association that receives its funds from membership dues or service fees, whether organized inside or outside the state, any entity organized in a corporate form under federal law or the laws of this state, or any group of persons acting in concert which is not defined as a political committee or political party in this chapter (§12-27-1(16))

Tennessee

(Repealed by 2010 Pub. Acts. c. 1095 § 1 and replaced with a new law that prohibits corporations from contributing to candidate committees but allows them to make independent expenditures)

It is unlawful for the executive officers or other representatives of any corporation doing business within this state, to use any of the funds, moneys, or credits of the corporation for the purpose of aiding either in the election or defeat in any primary or final election, of any candidate for office, national, state, county, or municipal, or in any way contributing to the campaign fund of any political party, for any purpose whatever. (§2-19-132(a))

None.

Texas

( The Fifth Circuit held in the 2013 case Texans for Free Enterprise v. Texas Ethics Commission that this law was unconstitutional and that the case was not distinguished from Citizens United)

A corporation or labor organization may not make a political contribution or political expenditure that is not authorized by this subchapter. (Elec. Code §253.094)

(Found to be unconstitutional in the 2013 Fifth Circuit case Texans for Free Enterprise v. Texas Ethics Commission)

A corporation or labor organization may not make a political contribution or political expenditure that is not authorized by this subchapter. (Elec. Code §253.094)

West Virginia

(Repealed by HB 4647, 2010)

Notwithstanding any provision of section two-b of this article, no officer, agent or person acting on behalf of any corporation, whether incorporated under the laws of this or any other state or of a foreign country, may pay, give, lend or authorize to be paid, given or lent any money or other thing of value belonging to the corporation for the purpose of expressly advocating the election or defeat of a clearly identified candidate for state, district, county or municipal office, to any candidate, financial agent, political committee or other person. No person may solicit or receive any payment, contribution or other thing from any corporation or from any officer, agent or other person acting on behalf of the corporation. (§3-8-8)

None.

Wisconsin

(Repealed by 2015 Act 117 § 24)

No foreign or domestic corporation, or association may make any contribution or disbursement, directly or indirectly, either independently or through any political party, committee, group, candidate or individual for any purpose other than to promote or defeat a referendum. (§11.38)

(Repealed by 2015 Act 117 § 24)

No foreign or domestic corporation, or association may make any contribution or disbursement, directly or indirectly, either independently or through any political party, committee, group, candidate or individual for any purpose other than to promote or defeat a referendum. (§11.38)

Wyoming

Except as otherwise provided in this section, no organization of any kind including a corporation, partnership, trade union, professional association or civic, fraternal or religious group or other profit or nonprofit entity except a political party, political action committee or candidate's campaign committee organized under W.S. 22-25-101, directly or indirectly through any officer, member, director or employee, shall contribute funds, other items of value or election assistance to aid, promote or prevent the nomination or election of any candidate or group of candidates or to aid or promote the interests, success or defeat of any political party. (§22-25-102)

Except as otherwise provided in this section, no organization of any kind including a corporation, partnership, trade union, professional association or civic, fraternal or religious group or other profit or nonprofit entity except a political party, political action committee or candidate's campaign committee organized under W.S. 22-25-101, directly or indirectly through any officer, member, director or employee, shall contribute funds, other items of value or election assistance to aid, promote or prevent the nomination or election of any candidate or group of candidates or to aid or promote the interests, success or defeat of any political party. (§22-25-102)

Source: National Conference of State Legislatures, January 2010; updated in July 2016.

 


2015 - 2016 Legislation Related to Citizens United

In addition to repealing existing state laws that conflicted with Citizens United, a number of state legislatures have attempted to combat the effects of Citizens United.  

Since Citizens United, states have taken three main approaches in responding to the effects of the decision: passing a resolution in support of overturning Citizens United, implementing additional disclosure requirements, and requiring majority approval from either shareholders or the board of directors before corporations are permitted to make political contributions.

The table below is a compilation of state laws introduced in the 2015 and 2016 legislative sessions in response to Citizens United.

State

Resolution to Overturn Citizens United

Disclosure & Attribution Requirements

Shareholder/BOD Approval or Notification

Other

Alaska

SJR 6; HJR 11  (Pending - Carryover)

 

 H 343 (Pending)

 

Arizona

 

S 1069 (Failed); S 1071 (Failed)

 

 

Connecticut

             

HJR 33 (Failed)

 

 

 

Georgia

 

 

 S 363 (Failed)

 

Hawaii

 SCR 22 (Failed)

 

S 2721 (Failed); S 220 (Failed); S 317 (Failed); H 644 (Failed)

 

Idaho

 

 

H 415 (Failed)

 

Iowa

HJR 3 (Failed)

 

   

Maine

 

 

 H 47 (Failed); S 151 (Failed)

 

Maryland

 

 

S 153 (Failed)

 

Massachusetts

 

 

H 616 (Failed)

 

Minnesota

 

 

H 2563 (Failed)

 

Mississippi

 

 

H 728 (Failed)

 

Missouri

 

H 222 (Failed)

H 1365 (Failed)

 S 129 (Failed) Requires authorization from each union member to make political contributions from that member's union dues

Montana

 

H 514 (Failed)

 S 370 (Failed)

S 289 (Enacted) Bans corporations and unions from making political contributions directly to candidates or through an intermediary.

New Jersey

 AR 18 (Pending)

 

A 2588 (Pending)

 

New Mexico

 SJR 12 (Failed)

 

 

 

New York

 

 

 S 43 (Pending); S 138 (Pending)

 

Pennsylvania

 

 

H 705 (Pending); H 1235 (Pending)

 

Tennessee

 

 

 

S 1890 (Failed) Bans corporations from donating to political committees

Virginia

 

 

 

H 931 (Failed) Bans corporations from making contributions to campaigns unless they have formed a political action committee

Washington

H 2848 (Failed); S 6505 (Failed)

 

 

 

West Virginia

 

 

H 2050 (Failed)

 

Wisconsin

 

S 201 (Failed); S 630 (Failed)

 

A 387 (Enacted) required certain non-candidate committees to register with the Government Accountability Board or a local filing officer before accepting contributions or making expenditures, and also subjected these entities to periodic reporting requirements; the bill also doubled the contribution limits for state and local offices, permitted unlimited contributions to certain non-candidate committees, and also prohibited corporations and unions from making contributions to entities other than independent expenditure and referendum committees

NCSL's Elections Team would like to thank Gavin Palmer for his diligent work to organize and compile the information on this page.


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