ACS is pleased to distribute “Citizens United: The Aftermath.”, an Issue Brief by Monica Youn, Counsel at the Brennan Center for Justice at New York University Law School. In this Issue Brief, Ms. Youn examines the political impact of the Supreme Court's January 21, 2010 decision in Citizens United v. Federal Election Commission and outlines potential responses that, the author contends, "would buttress existing campaign finance safeguards from further attacks and mitigate some of the harmful effects of [the decision]." In Citizens United, the Court held that limitations on corporate funding of independent political broadcasts in candidate elections violate the First Amendment, striking down a significant portion of the Bipartisan Campaign Finance Reform Act. Ms. Youn contends that the 5-4 decision represents an undermining of precedent with potentially grave consequences:

"By holding, for the first time, that corporations have the same First Amendment rights to engage in political spending as people, the Supreme Court re-ordered the priorities in our democracy -- placing special interest dollars at the center of our democracy, and displacing the rightful role of voters. By holding, for the first time, that corporations have the same First Amendment rights to engage in political spending as people, the Supreme Court re-ordered the priorities in our democracy-placing special interest dollars at the center of our democracy, and displacing the rightful role of voters."

Ms. Youn proposes a variety of responses to the decision. In the short term, the author recommends a legislative response that includes enactment of stop-gap measures (such as shareholder consent and increased corporate disclosure requirements) and larger structural reforms (such as public financing and voter registration modernization). However, in the longer term, Ms. Youn recommends closer attention to the Judiciary and judicial nominations:

"[I]n the long term, reclaiming the First Amendment for the voters will be the best weapon against those who seek to use the First Amendment for the good of the few, rather than for the many. Judges whose conception of the First Amendment takes account of the interests of voters can speed this process. As the nation seeks a successor to Justice Stevens, we hope that his successor advances a vision of a democratic, deliberative, and voter-centric First Amendment."

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ACS is pleased to distribute an Issue Brief by Deborah J. Vagins, Legislative Counsel for the Washington Legislative Office of the American Civil Liberties Union, and Erika Wood, Deputy Director of the Democracy Program at the Brennan Center for Justice at NYU School of Law, entitled “The Democracy Restoration Act: Addressing A Centuries-Old Injustice.” In this Issue Brief, Vagins and Wood discuss what they see as the next obstacle to overcome in expanding the right to vote as part of America's history of "successful struggles to expand the franchise to include those previously barred from the electorate because of race, class, or gender." According to the authors, "5.3 million American citizens are denied the right to vote because of criminal convictions." As Vagins and Wood point out, "[n]early 4 million of those who are disfranchised are out of prison, working, paying taxes, and raising families, yet they are without a voice" because they cannot fully participate in our democracy.

Vagins and Wood detail the roots of many disfranchisement laws that come from the Jim Crow era when they were designed to stop African Americans from voting. The authors note that the effects of these laws are still being felt today, pointing out that, “[n]ationwide, 13% of African American men have lost the right to vote as a result of a criminal conviction – a rate seven times the national average.” The laws regarding felon disfranchisement vary widely in different states, ranging from allowing prisoners to vote while they are in prison to permanently disfranchising people convicted of some crimes. The authors discuss this confusing patchwork of laws and how reform efforts have moved forward in some states, often with bipartisan and diverse support, while there has been no progress in other states, adding to the confusion for any person trying to figure out what his or her rights are. Vagins and Wood observe that, “[a] democracy’s strength is derived from broad civic engagement and election participation,” and point out that, “the United States is one of the few western democratic nations to exclude such large numbers of people from the democratic process.” The authors argue that this undermines our country’s ability to fully rehabilitate and reintegrate citizens returning from jail back into society. Last week, the U.S. House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, held a hearing on the Democracy Restoration Act, which is one solution to address the issues they discuss, and the authors conclude that it "must be enacted in order to restore voting rights to millions of American citizens in federal elections and to finally redress a centuries-old injustice."

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ACS is pleased to distribute “The National Voter Registration Act: Fifteen Years On,” by Estelle H. Rogers, Consulting Attorney with Project Vote. Ms. Rogers notes that Congress passed the National Voter Registration Act (NVRA) in 1993 in order to increase the number of registered citizens and to enhance participation in the electoral process. Yet, she observes, in the 2008 election—fifteen years after the passage of the NVRA—registration problems persisted.

In this issue brief, Ms. Rogers discusses the NVRA’s “significant untapped potential to solve many of the problems we continue to experience in our voter registration system, problems that have profound consequences on Election Day.” In particular, she focuses on Sections 7 and 8 of the NVRA. Section 7 requires that social service agencies and offices serving peoples with disabilities provide voter registration services similar to those provided by motor vehicle offices. Ms. Rogers notes that this section has been unsuccessful due to widespread non-compliance, and recommends, among other things, increased enforcement and clarification by the Department of Justice as well as additional efforts on the part of states to expand registration efforts. Section 8 addresses election administration and voter list maintenance and, according to Ms. Rogers, has been widely disregarded as states remove voters for the rolls without following the NVRA’s safeguard to minimize the risk of wrongful removal. Ms. Rogers again offers numerous recommendations including that the Department of Justice provide additional clarification and enforcement of this provision. She also describes possible statutory changes also to address this issue. She concludes that the “NVRA remains a powerful tool that should not be ignored. If it were – finally – vigorously enforced and properly interpreted, this . . . statute could well be the transformative law that its authors envisioned.”

ACS is pleased to distribute “Beyond Citizens United v. FEC: Re-Examining Corporate Rights,” an Issue Brief by Jeffrey D. Clements, an attorney in private practice who specializes in litigation and appeals with the Clements Law Office, LLC. One of the most highly anticipated decisions of the Supreme Court's 2009-2010 term will be the Court's resolution of Citizens United v. FEC. In this campaign finance law case, the Court is considering overruling two of its earlier decisions - Austin v. Michigan Chamber of Commerce and McConnell v. FEC - that upheld the constitutionality of restrictions on corporate political spending at the state and federal levels. Drawing on arguments he made in an amicus brief filed in Citizens United on behalf of five non-profit citizens groups, Mr. Clements argues that, "[w]hether or not the Supreme Court's decision in Citizens United explicitly addresses 'corporate rights' under the Constitution, a holding that overrules Austin and McConnell would rest on the remarkable - and erroneous - assumption that the Constitution provides corporations with First Amendment and Fourteenth Amendment rights equivalent to those of people for purposes of political expenditures."

Mr. Clements contends that the Citizens United case would lead to an alarming expansion of corporate rights, and discusses how the issues presented in the case have made their way into the mainstream media and prompted warnings to the Court from politicians across the political spectrum about overruling the existing precedent. He argues that these reactions have resulted, in part, because "the Court's decision to examine whether corporations have First and Fourteenth Amendment rights to free speech and political activity has renewed a debate about the place of corporations in our constitutional jurisprudence that has simmered for more than a century." Mr. Clements concludes that "if the Court deems Congress and the states to be powerless to restrict corporate political expenditures ... [s]uch a conclusion by the Court would not only be wildly out of touch with the realities of corporate power in contemporary American life, but would disregard the Court's proper separation over 200 years of the constitutional rights of people from those claimed by corporations."