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What Will Citizens United Do to the 2010 Election Cycle?

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  • What Will Citizens United Do to the 2010 Election Cycle?

    So what to make of the Citizens United case? How much is it really going to change state and federal elections? What sort of impact will it have leading into the 2010 mid-term elections?

    We’ll get to these questions in a minute. But for now, let’s try to unpack the decision a bit more.

    The factual backstory is interesting. In 2008, during the Democratic primary, a conservative organization called Citizens United made a documentary that took an unflattering look at Hillary Clinton, one of the leading candidates. The Federal Election Commission ruled that Citizens United couldn’t offer the documentary to cable stations for on-demand play, that such a move violated the 2002 McCain-Feingold campaign finance law.

    The case wound its way to the Supreme Court and last summer, the court decided to use the case as an opportunity to revisit the constitutionality of campaign-finance laws more generally. At the time, the court indicated it was mulling reversing longstanding precedent cases on whether and to what degree corporations and unions were able to spend money in support of a candidate. Critics, such as Citizens United, argued that such laws violated the First Amendment’s free speech clause.

    In regard to Thursday’s decision, it helps to understand what the court didn’t decide. It didn’t rule on an individual’s right to contribute to a federal campaign. Individuals are still permitted to give up to $2,400 to a candidate during the primary and $2,400 to a candidate during the general election. Individuals are also still allowed to give $5,000 to any given political-action-committee. The amount an individual could give a campaign was, yesterday, $115,500 over a two year period. Today it’s the same.

    Nor did the court change the law on corporations’ ability to contribute directly to a political campaign. Yesterday, direct contributions to a political campaign were banned. Companies could organize and alert employees to the existence of PACs, but they could not give money out of their general treasuries to PACs. Today, that’s still the case.

    What the ruling did, however, was erase bans on corporations’ abilities to spend money in support of a candidate. Yesterday, a company was limited in its ability to create, say, its own television advertisement supporting or ripping a political candidate. Today, there are no limits. So long as a company does not coordinate with a campaign, it can spend as much money as it wants to on a sort of shadow campaign on behalf of a candidate.

    Loyola Law School’s Rick Hasen explained it to us this way: “Yesterday, if you wanted to influence the otucome of an election, you had to set up a PAC, contributions int which were limited to $5,000 per individual. But today, things are very differerent. Google or IBM, for instance, can spen an unlimited amount of money in support of a candidate.”

    Okay. So how did the court get there?

    As we wrote in a previous post, the case really pitted two fundamental American desires: the desire to protect citizens’ free-speech rights against the desire to keep elections free from too much meddling by special interests.

    “Today, those on the free speech side have won the day,” said Ken Gross, the head of Skadden’s political law practice. Gross, who was not involved in the case, explains that laws restricting free speech are allowed so long as the entity passing the law can convince a court that the law serves a compelling governmental interest and is narrowly tailored to its purported purpose.

    In Citizens United, however, the court ruled that the interest at issue — keeping elections free of too much corporate influence — was not good enough. Said Gross: “For the first time in over 100 years, the court said that even though corporations are favored entities under law, they should be entitled to same first amendment rights as living human beings.”

    Everyone we talked to on Thursday said the decision was, in effect, a game changer. But to what degree will companies right away start bankrolling their own campaigns? Folks were more circumspect.

    “I don’t see my clients jumping into the fray here,” said Gross. “My clients have shareholders, and shareholders don’t want their investments put into partisan politics. The last thing a company wants to have to do is explain at an annual shareholders’ meeting why it spent hundreds of thousands on some political race.”

    Added Gross: “corporations are not looking for new ways to spend money.”

    Perhaps not. But Gross added that over time, it might start to look less unseemly for a company to fund a sort of shadow campaign. “It might take some time before the impact really takes hold. It might be 2012, not 2010.”

    That said, the mere specter of a corporate challenge could cause some incumbents to change the way they behave while in office, said Guy-Uriel Charles, a law professor at Duke. If you’re an incumbent, you’re really going to have to think about the fact that some corporate entity can now run ads against you during your reelection campaign,” he said. “It really changes things.”

    Tom Walls, a lawyer at McGuireWoods who was not involved in the Citizens Union case, hesitated to make any bold predictions on the case’s impact until Congress has had the chance to digest it. “There’s a good chance Congress will act on this, either to rework McCain Feingold or maybe even to tee up additonal legislation.”

    Indeed, President Obama Thursday afternoon took up Wall’s point. In a written statement, he said the high court had “given a green light to a new stampede of special interest money in our politics,” and pledged to “work immediately” with Congress to develop a “forceful response.”

    “The public interest requires nothing less,” Obama said.

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