1. Barack Obama, Remarks by
the President in State of the
Union Address (Jan. 27,
2. See Robert Barnes, Reactions Split on
Obama’s Remark, Alito’s Response at State
of the Union, WASH. POST, Jan. 29, 2010.
3. Dan Eggen, Poll: Large Majority Opposes
Supreme Court’s Decision on Campaign
Financing, WASH. POST, Feb. 17, 2010.
4. Theodore Roosevelt, State of the Union
Address, 40 Cong. Rec. 96 (1905); see also
United States v. UAW-CIO, 352 U.S. 567,
570-84 (1957) (summarizing history of
Corrupt Practices Act). Roosevelt also
urged other legislation to prevent corruption in politics, including laws preventing
bribery and a restriction on the use of corporate funds to influence legislation.
5. Tillman Act of 1907, 34 Stat. 864 (Jan.
26, 1907). This prohibition was extended
to labor unions in 1943. War Labor
Disputes Act, ch. 144, 57 Stat. 163
(1943) (also known as the
6. See, e.g., Buckley v. Valeo, 424 U.S. 1
7. Taft–Hartley Act, 61 Stat. 136 (1947).
8. Unions also may sponsor and control separate segregated funds that collect contributions from their members. Federal
Election Campaign Act of 1971, Pub. L.
No. 92-225, 86 Stat. 3 (1972), relevant
provision codified at 2 U.S.C. §
441b(b)( 2). These provisions also allow
corporations and unions to communicate
with their restricted classes on any subject
and to engage in nonpartisan voter registration and get-out-the vote efforts aimed
at that same class. Id.
9. Many states, including Arizona, adopted
guidelines similar to those of the federal
law: Corporations and unions could act
through the political action committees
they controlled and sponsored, but could
not use their own money for political contributions or expenditures. A.R.S. §§ 16-
10. With the ban on corporate political expenditures firmly in place, further campaign
finance legislation focused on regulating
other campaign-related activities, such as
speech that does not expressly advocate
for a candidate but addresses “issues” in a
manner likely (and often intended) to
influence the outcome of elections. See
Bipartisan Campaign Reform Act, Pub. L.
No. 107-155, 116 Stat. 81 (Mar. 27,
2002), relevant provisions codified at 2
U.S.C. § 441b, 2 U.S.C. §
441i(e)( 1)(A)), 11 C.F.R § 114.2 (
banning political parties from accepting corporate funds to finance issue advocacy and
restricting communications made shortly
before elections that refer to clearly identified federal candidates).
11. Trailer for Hillary: The Movie, available at
12. Austin v. Michigan Chamber of Commerce,
494 U.S. 652 (1990) (upholding
Michigan’s ban on corporate independent
expenditures). Because Citizens United
accepts some contributions from
corporations, it does not fall within a
narrow exception articulated by the Court
that permits independent expenditures by
nonprofit corporations, without
shareholders, that exist only for political
purposes and do not take corporate or
union contributions. Federal Elections
Comm’n v. Massachusetts Citizens for Life,
479 U.S. 238 (1986).
13. Citizens United v. Federal Election
Comm’n, 130 S. Ct. 876, 888-91 (2010).
14. 130 S.Ct. at 913.
15. Id. at 913-14. Eight of the Court’s nine
members joined this part of the opinion,
with only Justice Thomas dissenting. Id. at
16. Approximately half of the states banned
corporate campaign expenditures at the
time of the Citizens United decision. See
National Conference of State Legislatures,
Life After Citizens United, available at
17. 130 S. Ct. at 892-96, 936-42 (Stevens, J.
dissenting). The Court also discussed, in
some detail, the difference between facial
and as-applied constitutional challenges, in
the context of reviving Citizens United’s
facial challenge to the corporate expenditure ban.
18. 130 S. Ct. at 917-24 (Roberts, C.J., concurring).
19. Press Release, Federal Elections
Commission, FEC Statement on the
Supreme Court’s Decision in Citizens
United v. FEC (Feb. 5, 2010), available at
CitizensUnited.shtml (indicating that FEC
will continue to enforce disclaimer requirement of 2 U.S.C. § 441d and disclosure
requirements of 2 U.S.C. § 434).
20. Id. Arizona had no comparable require-
ment for disclaimers and disclosure by
speakers other than registered political
committees, except for special reports that
must be filed when independent expendi-
tures are made in races subject to the
Citizens Clean Elections Act. See A.R.S. §
16-912 (disclaimer requirement applies
only to political committees formed for the
primary purpose of influencing elections);
§ 16-940(D) (requirement to report cer-
tain independent expenditures to the
Secretary of State). Legislation is currently
pending that would add disclaimer and dis-
closure requirements for corporate and
union independent expenditures. HB 2788
& SB 1444, 49th Leg., 2d Reg. Sess.
(Ariz. 2010). The legislation, if passed,
would need to be precleared by the
Department of Justice under Section 5 of
the Voting Rights Act before it could