Imagine power companies spending millions of dollars on ads in the run-up to the 2010 midterm elections accusing congressmen who supported climate change legislation of trying to increase electric rates and urging votes against them, or unions buying airtime to support primary challenges to conservative Democratic senators who opposed the labor-backed Employee Free Choice Act. Or even healthcare companies saturating the airwaves with messages urging voters to deny President Obama a second term.
All those ads would be illegal under current election law. But the Supreme Court will hear arguments Wednesday in a case that challenges decades of restrictions on corporations and unions spending unlimited cash on just those sorts of ads. Even more broadly, the case, Citizens United v. Federal Election Commission, gives the court’s conservative majority a chance to fundamentally redefine the role of corporations and unions in American politics.
Campaign finance experts predict the court, which has demonstrated an inclination towards incremental loosening of rules restricting the flow of money into politics, will expand the types of ads corporations and unions can pay for. Their only question is just how much the justices will open the floodgates.
Depending on the contours of the decision, sources familiar with the political and legal strategies of unions, major Washington advocacy groups and trade associations expect a deluge of new spending in the 2010 and 2012 elections that likely would most benefit Republicans, since for-profit corporations and their non-profit advocacy groups tend to lean right and have more money at their disposals than unions, which typically support Democrats.
Though few corporations or unions would speak publicly about what they’d do if the court allows them to buy ads supporting or opposing candidates, some of the biggest-spending and most powerful special interest groups in national politics – the AFL-CIO, National Rifle Association and the U.S. Chamber of Commerce, among others – filed briefs in Wednesday’s case supporting Citizens United, the obscure conservative non-profit group challenging the ad restrictions. The group argued its free speech rights were violated when the FEC moved to block it from paying to promote and air "Hillary: The Movie," a feature-length movie harshly critical of then-Sen. Hillary Clinton during her 2008 campaign for the Democratic presidential nomination.
The Democratic National Committee’s top lawyer, Bob Bauer, who also personally represents President Obama, argues that opening the door to more corporate spending in elections would discourage what Bauer contends is the rising power of the type of small donors who helped power Obama to victory in last years’ presidential campaign, and who “are now enlisting to volunteer in their political causes, forming a new online corps of freshly empowered average citizens of varying party affiliations and political commitments.”
“A sudden change in the law, to the advantage of corporate wealth amassed in commercial transactions, would cause a violent disruption in this process,” Bauer asserts in a DNC brief filed with the court opposing the new spending.
“If the Supreme Court goes all the way, it will be major sea change and there will be a lot more corporate money and a lot more labor union money coming into the process,” said Robert Kelner, a lawyer at Covington and Burling who advises major corporations, trade associations and advocacy groups on campaign finance law.
Later this month the firm is holding a seminar to advise clients seeking to set up issue advertising campaigns for the 2010 congressional midterm elections. Kelner said there will likely be plenty of discussion about the potential avenues that could be opened by the court’s decision, though it won’t be issued for months.
Ultimately, though, he predicted most of the groups potentially affected by the case would shy away from funneling big money into ads directly backing or opposing candidates, primarily because such ads are politically riskier – and can be less effective – than spending money on issue advocacy campaigns or lobbying.
But Kelner asserted that if the court expands political ad spending opportunities, “it would free up the handful (of corporations and unions) that are interested in spending a lot of money to spend that money with greater abandon and with fewer restrictions.”
In a 2003 Supreme Court case that will be revisited Wednesday, Kelner represented the Republican National Committee and the California Democratic Party, who were part of an unlikely coalition that also included the American Civil Liberties Union, the AFL-CIO and NRA, that backed lead plaintiff Sen. Mitch McConnell of Kentucky’s challenge of the 2002 McCain-Feingold campaign finance overhaul.
McConnell, now the Senate minority leader, opposed the law as an infringement on First Amendment rights, partly because it prohibited corporations and unions from spending unlimited funds on broadcast, cable and satellite ads that even mentioned federal candidates in the run-up to elections, let alone explicitly supported or opposed their election.
But the court, in a 5-4 decision, upheld the McCain-Feingold prohibition, determining that the restriction on free speech was minimal, and was offset by a compelling government interest in preventing corporations, in particular, from having an inordinate influence in the political process.
Citing Austin v. Michigan Chamber of Commerce, a 1990 case in which the court ruled that corporations could be barred from spending general treasury funds on ads expressly urging a candidate’s election or defeat, the justices noted that they had “repeatedly sustained legislation aimed at the ‘corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.’”
Since 2003, however, the court has become more hostile to campaign finance regulations, a philosophy unlikely to be affected by the arrival of Sonia Sotomayor, who has expressed support for the idea of limiting the role of money in politics and will be hearing her first case Wednesday.
In 2007, for instance, the Court loosened McCain-Feingold’s restrictions on corporate and union ads. That decision riled advocates for limiting the role of money in politics and, according to FEC data, it paved the way for corporations and unions in the months before Election Day 2008 to spend $108.5 million on ads that would have been illegal before the decision.
Still, advocates for stricter campaign finance rules were shocked when the justices, who initially heard the Citizens United case in March, asked the parties to return for a rare re-argument of the case – with a much broader focus. Instead of merely arguing whether federal election laws requiring donor disclosure and limiting content and airing dates should have applied to “Hillary: The Movie,” Chief Justice John Roberts asked the parties to argue whether the court should reverse its rulings in the 2003 McConnell case and the 1990 Austin case.
“Citizens United wasn’t even asking for this,” said Craig Holman, a lobbyist for Public Citizen, which lobbies for stricter campaign finance rules. “The court on its own initiative decided that it was going to look at a 100 years of precedent in restricting corporate money in politics altogether. That is judicial activism at its worst,” said Holman, invoking a charge more commonly leveled by conservatives against judges seen as advancing liberal social causes.
To be sure, the law barring corporations from directly funding candidates’ campaigns – the 1907 Tillman Act, which President Theodore Roosevelt signed into law after being signed by a scandal surrounding his own acceptance of corporate contributions for his 1904 election– is unlikely to be directly affected by the court’s decision in Citizens United. But Holman and others predict that if Citizens United wins a sweeping victory, opponents of campaign finance rules likely would target it.
Those opponents, though, contend that supporters are exaggerating the significance of the Citizens United case.
“This doomsday rhetoric that millions and millions of dollars will just wash over the system is just scare tactics,” said Brad Smith, formerly a Republican appointee to the Federal Election Commission who founded the Center for Competitive Politics, a non-profit that fights for the deregulation of campaign finance. In its brief supporting Citizens United, the Center pointed out that 26 states allow unlimited corporate advertising in state races without rampant corruption of their political system.
“In fact,” Smith said, “the opposite is true – corporate and union political speech can enrich debates and increase voter knowledge, and often theirs are unique voices that voters ought to hear.”