The U.S. Supreme Court is expected to issue opinions Wednesday or Monday, potentially releasing its long-anticipated decision in Citizens United v. Federal Election Commission.
On the day the ruling is announced, the Center for Competitive Politics will host a conference call with a wide range of experts to discuss the Court’s decision and its impact. The call will be open to journalists, bloggers and other interested parties. Campaign finance lawyers, including former FEC members, will analyze the Court’s opinion, discuss what the decision means for campaign finance regulations in the 2010 and 2012 cycles and address proposed legislative responses like congressional taxpayer financed campaigns.
DETAILS
Conference call with campaign finance experts following the decision in Citizens United v. FEC.
11:15 a.m. on the day of the decision
(712) 432-0080
Access code: 373773#
PARTICIPANTS
Bradley A. Smith
Chairman, Center for Competitive Politics
Former Chairman, Federal Election Commission
Floyd Abrams
Counsel for Sen. Mitch McConnell in Citizens United v. FEC at re-argument before the U.S. Supreme Court
Laurence E. Gold
Of Counsel, Lichtman, Trister & Ross
Joseph E. Sandler
Sandler, Reiff & Young P.C.
Former General Counsel of the Democratic National Committee
James Bopp, Jr.
Bopp, Coleson & Bostrom
General Counsel, James Madison Center for Free Speech
argued Citizens United in the lower federal courts
Hans A. von Spakovsky
Senior Legal Fellow at The Heritage Foundation’s Center for Legal and Judicial Studies
Former member of the Federal Election Commission
BACKGROUND
The U.S. Supreme Court heard a second round of oral arguments in Citizens United v. FEC in September. Citizens United, a non-profit organization that produced a documentary movie highly critical of then-candidate Hillary Clinton, wanted to distribute the movie via video-on-demand technology and run ads promoting the movie. The FEC ruled that they could not, under the electioneering communications sections of McCain-Feingold, air commercials promoting the movie or distribute the movie via video-on-demand technology. In June 2009 the U.S. Supreme Court announced it would re-hear oral arguments in the case specifically on the issue of whether they should overturn Austin v. Michigan Chamber of Commerce, a 1990 decision permitting bans on independent expenditures in campaigns by corporations and unions, and the electioneering provision of McConnell v. FEC. In the case’s first oral argument, the government contended pursuant to Austin, the Constitution gave it the authority to ban books if they were published or paid for by corporations or unions. On reargument, the government stressed that it had not attempted to ban books under the law, but it did not renounce its position that it had that authority. The government also adopted an argument that it could restrict independent corporate and union speech because candidates and officeholders might feel “indebted” to the speakers, raising a danger of quid pro quo corruption. Such a danger or interest has never been recognized under Supreme Court campaign finance jurisprudence as a constitutional justification to regulate such speech, essentially meaning the government is asking the Court to overrule Buckley v. Valeo (1976).
The Center for Competitive Politics (CCP) is a nonprofit, nonpartisan organization dedicated to promoting and protecting the First Amendment political rights of speech, assembly and petition. CCP filed an amicus brief — and a supplemental amicus brief — in Citizens United. Smith and von Spakovsky also joined six FEC Chairmen in a supplemental amicus brief filed by Bopp. Gold authored a supplemental amicus brief on behalf of the AFL-CIO.
FREQUENTLY ASKED QUESTIONS
Would this case allow corporations and unions to make direct contributions to federal candidates?
No. This case involves independent expenditures (independent, uncoordinated ads, direct mail, etc.) by corporate and union treasuries. No serious election law observer believes the U.S. Supreme Court will rule to allow corporate or union contributions to candidates, an issue not briefed at the original oral argument in March 2009 or the re-argument in September. This did not stop some “reformers,” like former Common Cause head and Maine Congresswoman from circulating a “Dear Colleague” letter on Capitol Hill distorting this point.
Could the Supreme Court overrule 100 years of campaign finance precedent?
No. The 100-year-precedent argument, advanced by Fred Wertheimer and others, doesn’t fly because the Tillman Act of 1907 banned corporate direct contributions, not at issue in this case (as Justices Samuel Alito and Anthony Kennedy noted). Independent corporate and union 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.
Also, the Court held in Austin that “corporate expenditures have ‘distorting and corrosive effects’ on elections.” However, Solicitor General Elena Kagan abandoned that rationale and never mentioned it in the government’s merit brief on re-argument, as noted reformer Prof. Richard Hasen has noted. The government created a new
rationale, alleging that independent expenditures pose “quid pro quo corruption risks,” which is contrary to Buckley v. Valeo — certainly a more important campaign finance precedent than Austin.
If the Supreme Court ruled broadly in favor of Citizens United, overturning Austin v. Michigan Chamber of Commerce and part of McConnell v. FEC, would corporations thwart our democracy?
The evidence proves otherwise. In 28 states representing about 60 percent of the U.S. population, independent expenditures are already completely legal in state races. In a state government, one would assume that a corporation or a union could much easier exert its influence on elections. But corporations have not overtaken these states. No state is known to have a corruption problem due to independent expenditures, speech about candidates aimed at voters, who are free to accept, consider or reject the information.
Senators Russ Feingold and John McCain claim that corporations could spend “trillions” of dollars on ads, buying up all the air time and drowning out other voices. Is that true?
Again, the evidence points to a different conclusion. Make no mistake that more speech — by advocacy groups, unions and corporations — is a good thing. A favorable ruling, though, is more likely to impact small businesses and nonprofit advocacy groups, who could start engaging in political speech without creating a political action committee, hiring lawyers and submitting to extensive FEC regulations.
In any event, corporations are free to make politically-related expenditures now, and their spending is quite modest. Total spending on lobbying in 2008 was $3.3 billion according to the Center for Responsive Politics (CRP). Lobbying is unlimited, yet corporations are not pouring billions of dollars into lobbying from their general treasuries. The top spender, the U.S. Chamber of Commerce, spent about $92 million.
Even more relevant, though, are soft money (pre-McCain-Feingold) and 527 figures (post-McCain-Feingold).
In 2002, before McCain-Feingold banned soft money, the largest soft money donor gave $9.3 million from a corporate treasury. Five of the top ten donors were unions, one was a federally-connected company (Freddie Mac) and the other four were corporations, according to CRP. So, when corporations could pour unlimited amounts of money into politics, fewer than seven spent more than $3 million and none over $9.3 million. Yet, Sen. Feingold is using scare tactics to claim companies will somehow spend trillions or hundreds of billions on independent ads.
When corporations were allowed to fund issue advertising through 527 organizations [which “reformers” have regularly asserted is functionally equivalent to express advocacy], campaign finance watchdogs predicted a huge influx of corporate dollars into these groups. But the vast majority of companies stayed away. In fact, according to the Campaign Finance Institute, only 2 percent of the contributions to federal 527s in 2007 came from businesses.
