State Legislatures May Be Next Battleground For Post-Citizens United Shareholder Protection Proposals

After the Supreme Court’s 2010 ruling in the Citizens United v. FEC that corporations could spend unlimited funds from their corporate treasuries on independent political expenditures, some in Congress sought to give shareholders a say in deciding what what expenditures to make. While the Shareholder Protection Act of 2010, a bill by Rep. Mike Capuano (D-MA) to give corporate shareholders the right to vote on political expenditures, was endorsed by the House Financial Services Committee, it never came up for a vote on the House floor. Now, with Republicans in the majority in the House and able to filibuster any reform efforts in the Senate, some reformers have turned their focus to state legislatures.

A Connecticut legislative committee is currently considering a bill that could put the Nutmeg State at the forefront on the issue. A provision of House Bill 5528 would require a shareholder majority approve political spending. The bill would require:

Notwithstanding any provision of the general statutes, for corporations incorporated in this state, shareholders shall annually authorize a political activities budget for the corporation by a majority of votes representing all outstanding shares. For corporations not incorporated in this state, but registered to do business in the state or with shareholders residing in the state, shareholders in the state shall authorize spending related to the state’s elections. Fiduciaries voting on behalf of investors shall disclose such vote to investors.

Another provision in the draft bill would require that the corporations’ boards of directors approve each expenditure over $10,000.

The Connecticut Business & Industry Association, predictably, has opposed these rules, calling them “an intrusion into a corporation’s constitutionally protected right to free speech” and warning that the “regulatory hurdles” of allowing the people who actually own a corporation to have a say in the political speech of that business would “will not make Connecticut appealing as a place to do business.”

But as Ciara Torres-Spelliscy, a professor at Stetson University College of Law and an expert on election law, noted in her committee testimony, “though the Supreme Court majority in Citizens United conceptualized corporations as collections of individuals with joint First Amendment rights, it is unclear how shareholders can voice their opinions collectively without a consent process.” By passing this bill, she says, “Connecticut can be the mouse that roars, exhibiting national leadership in this post-Citizens United America.”

If corporate political expenditures are really about protecting free speech, as the 5-4 Supreme Court majority said, measures like this could make sure that the people who actually make up the corporation are the ones deciding whether to speak, how much to speak, and what to say.