USA Today quotes CCP Chairman Brad Smith on the potential impact of Citizens United v. FEC on state campaigns in 2010:
Others, such as campaign-finance expert Bradley Smith, say the ruling’s effects could be limited, in part, because publicly held companies — sensitive to stockholder and customer concerns — could stay on the sidelines. “We think more speech would be a good thing,” added Smith, head of the Center for Competitive Politics, which favors less regulation.
The story, unfortunately, conflates state laws on independent expenditures and contributions in predicting the potential consequences of a broad, free speech-affirming decision in Citizens United. Citizens United is about independent expenditures in support of — or opposing — a candidate (in this instance, a movie paid for by a conservative group critical of then-presidential candidate Hillary Clinton). While state laws concerning corporate or union direct contributions may tangentially be related to Citizens United, the fact is that any decision in Citizens United will only impact state laws on independent expenditures — not direct contributions.
There is no possible way that Citizens United will address state level corporate or unions source prohibitions on direct contributions, contribution limits in general or coordinated expenditures by unions/corporations with candidates. Although “reformers” will occasionally use hyperbolic rhetoric to suggest that groups like CCP will eventually challenge contribution limits based on the jurisprudence of a strong Citizens United decision, I know of no legal analyst who seriously thinks that a decision in Citizens United could directly impact state laws on direct corporate and union contributions.
USA Today errs by assuming that Citizens United could have this impact on direct contributions as soon as 2010, which is an incredible leap considering how long it takes for legislation to work its way through the courts and for legislatures to change state laws based on a SCOTUS ruling on Citizens United. There’s no guarantee that a broad ruling in Citizens United would even compell all states with laws banning corporate and union independent expenditures to change their laws before the height of the 2010 campaign season. Some legislatures may act to conform with the Supreme Court or avoid litigation but others might drag their feet, forcing organizations to challenge independent expenditure bans in court.
USA Today‘s graphic accompanying the story and most of the analogies (direct corproate and union contributions in Virginia, for example) concern laws about direct contributions from corporations or unions to candidates’ campaigns. For example, the story says, “Twenty-two states ban corporate spending in state candidate races.” The number of states that limit independent corporate spending (as opposed to direct contributions from a corporate treasury) is actually 24, according to Public Citizen, which supports campaign finance regulations.
Groups like Democracy21 and the Campaign Legal Center, which is also quoted in the USA Today story, constantly attempt to overdramatize Citizens United with claims that overturning Austin v. Michigan Chamber of Commerce would invalidate corporate contribution bans and limits.
I mentioned “reformers'” tendency toward hyperbole on this issue in a Sept. blog post [emphasis added]:
The 100-year-precedent argument, also advanced by Fred Wertheimer and his cohorts, doesn’t fly because the Tillman Act banned corporate direct contributions, not at issue in this case (as Justices Alito and Anthony Kennedy noted). Independent corporate expenditures were not banned until the 1947 Taft-Hartley Act, but this was rarely enforced prior to the 1974 FECA Amendments. The Court did not uphold such a ban until Austin in 1990. Chief Justice Roberts also rebuked Waxman on this point, citing a brief filed by campaign finance scholars and drafted by CCP board member Allison Hayward.
No one disputes, however, that the next potential date for a Supreme Court decision in Citizens United is Dec. 1.
