Published January 10, 2010
WASHINGTON -- Possibly coming soon: election-season Super Bowl-style television ads promoting congressional and presidential candidates, paid for by some of the largest U.S. corporations.
It may happen. For decades, business and union money has been largely shut out of state, congressional and presidential campaigns. The Supreme Court may change that in a big way.
The court has raised a range of high-stakes possibilities that could let corporations, unions and wealthy individuals pour money into elections in time for this year's congressional races, not to mention the 2012 presidential contest. A ruling is expected as early as Tuesday.
At one extreme, the justices could give corporations, unions and activist groups funded by wealthy donors virtual free rein to run election-time ads for or against candidates.
Depending on the details, such a ruling could lay the groundwork for wealthy interests to press their rights further in future cases and argue they should be able to give money directly to presidential and congressional campaigns.
Going further, the court could strike down state laws banning such donations from campaigns. The justices also could decide that little or no information need be disclosed about such fundraising and spending.
At the other end of the spectrum, the court could stand by current federal law. It bans unions and incorporated entities such as businesses, trade associations and interest groups from donating to national party committees and congressional and presidential campaigns. It also prohibits, close to elections, the airing of ads that urge voters to support or oppose federal candidates.
The court also could let similar state laws stand.
Or it could come down somewhere in between, perhaps giving corporations and unions a freer hand in running election-time ads independent of candidates but requiring the disclosure of related fundraising and spending.
The case involves a film that criticized then-presidential candidate Hillary Rodham Clinton during the 2008 Democratic presidential primary campaign.
A conservative group, Citizens United, produced the film and planned to air ads promoting its distribution through cable television video-on-demand services. The Federal Election Commission said the film amounted to a campaign ad and that Citizens United, an incorporated entity that takes corporate money, could only use limited, disclosed contributions from individuals to promote and broadcast it.
Citizens United disagreed and sued; lower courts sided with the FEC. The Supreme Court agreed to take the case and decided to also consider whether to part ways with past high court decisions upholding restrictions on corporate and union election spending.
The court could rule so narrowly that it simply says the restrictions on corporate and union political ads do not cover material shown through pay-per-view or video-on-demand services.
If the justices decide to undo all or part of the past rulings, they could open a door to corporations to participate directly in elections for the first time since a 1907 law, the Tillman Act, barred such spending.
They could scale back substantially the hard-won 2002 Bipartisan Campaign Reform Act, also named the McCain-Feingold law after its sponsors, Sens. John McCain, an Arizona Republican, and Russ Feingold, a Wisconsin Democrat, and pave the way for eventually undoing strict limits on corporate and union giving in federal elections imposed in the first half of the last century to fight corruption.
The U.S. Chamber of Commerce; AFL-CIO labor federation; National Rifle Association, the gun owners' lobbying group, and others on Citizens United's side contend they have a right to be involved in elections.
In arguing for an end to restrictions, the Chamber contends current spending and disclosure rules unfairly deprive voters of ads, threatening "the First Amendment rights of willing listeners." Requiring disclosure of donors for political ads inhibits companies from contributing, the group says.
The government contends the current campaign finance rules are constitutional. The Democratic National Committee is backing the government's position. In a brief co-filed by attorney Bob Bauer, who was later named White House counsel, the DNC argued that if the court swept away corporate spending restrictions, for-profit companies could overwhelm the power of individual small-dollar donors.
It also would leave political parties, which can't raise unlimited sums, at a disadvantage in responding to a barrage of corporate political ads attacking their candidates or supporting their opponents, and there "would be a heightened risk of corruption," the Democrats argue.
The biggest potential change would come if the court grants corporations the same free speech protections now granted individuals under the First Amendment of the U.S. Constitution, said Trevor Potter, president of the Campaign Legal Center, which wants to preserve current law.
If that happens, he said, there likely would be immediate lawsuits brought arguing that corporations and unions also should be free to donate directly to campaigns, just as individuals can do.
Michael Toner, a former Republican FEC commissioner, said the court gradually has rolled back restrictions on political money.
"You're seeing this chipping away, and that could accelerate if the court decides Citizens United in a really broad fashion," Toner said.
Citizens United is largely backed in its arguments by Republican-leaning groups, which suggests they think loosening restrictions on corporate money in elections would benefit them more than Democrats. But it's not that clear who would get the advantage should corporate and union money be allowed to flow.
Some industries overwhelmingly favor Republicans, while others hedge their bets. Unions can spend big and would do so on behalf of Democrats. Each party has its array of supportive interest groups.
Neither party is short on wealthy activists willing to write $1 million-plus checks. Many of those simply steered their giving to partisan activist groups when soft money was banned from federal elections after the 2002 elections.
Another unknown is to what extent corporate shareholders would support or revolt against companies mining their treasuries to spend in elections, especially in a tough economy. Activist shareholders have long been vocal on the issue, and some have successfully pressed companies to disclose their political spending.
The case is Citizens United v. FEC, 08-205.