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Has The Legislature Forgotten Citizens United And The First Amendment?


More than a decade ago, the United States Supreme Court held that government restrictions on independent political expenditures by corporations and labor unions violated the First Amendment to the U.S. Constitution.   Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed.2d 753 (2010).   At the time, nearly half the states banned corporate independent expenditures.  Every state, save Montana, repealed those bans.  See Sunlight State By State After Citizens United Corporate Reform Coalition (June 2012).  Although Montana’s Supreme Court upheld the ban, the U.S. Supreme Court concluded that there was no serious doubt that its holding in Citizens United applied to the ban.  Am. Tradition P’ship, Inc. v. Bullock, 567 U.S. 516, 516, 132 S. Ct. 2490, 2491, 183 L. Ed. 2d 448 (2012).

The California legislature is now considering a bill, AB 83 (Lee & Kalra), that would prohibit a “foreign-influenced business entity”, among others, from making, among others, an independent expenditure in connection with the qualification or support of, or opposition to, any state or local ballot measure or in connection with the election of a candidate to state or local office.  See  Legislator Proposes Ban On Foreign-Influenced Business Entity Contributions and California Bill Would Require CEOs to Disavow “Foreign Influence”.   The California Political Reform Act of 1974 defines an “independent expenditure” as “an ‘expenditure’ made by any person, including a payment of public moneys by a state or local governmental agency, in connection with a communication which expressly advocates the election or defeat of a clearly identified candidate or the qualification, passage or defeat of a clearly identified measure, or taken as a whole and in context, unambiguously urges a particular result in an election but which is not made to or at the behest of the affected candidate or committee”.   Cal. Gov’t Code § 82031. 


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