Who is helped, or hurt, by the Citizens United decision?

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Sunday, January 24, 2010

The Post asked political and legal experts to explain who is helped, and who is hurt, by the Supreme Court's Citizens United decision. Below are contributions from Sen. Russell Feingold, Cleta Mitchell, Robert Lenhard, Kenneth Gross, Anna Burger, Ben Ginsberg, Ed Rogers, Marc Elias, and Karen Finney.

SEN. RUSSELL FEINGOLD (D-WIS.)

Co-author of the McCain-Feingold campaign finance legislation

The Massachusetts election Tuesday was the last one conducted under rules that had been in place for over a century to protect the right of the people to choose their government free from enormous expenditures of corporate wealth. Next time voters want to send us a message at the ballot box, they may find their voices drowned out by wealthy corporations with their own special-interest agendas.

This Supreme Court decision takes us back a century to a legal framework that fostered a golden era of corporate influence. While the core of the McCain-Feingold law ¿ the ban on unlimited "soft money" contributions by corporations, unions and wealthy individuals directly to the political parties ¿ remains intact for now, the reasoning of this decision undermines the foundation of a host of laws enacted to strengthen our democracy and curb corruption in government. Indeed, the soft-money ban could very well be the next target of those who want to see our political system dominated by corporate influence.

This decision gives a green light to corporations to unleash their massive coffers on the political system. The profits of Fortune 500 companies in 2008 alone were 350 times the entire amount spent on the last presidential election.

Oil companies, with virtually no harm to their balance sheets, can now try to "take out" members of Congress who don't toe their company line on energy policy. Foreign-owned companies ¿ even those owned and controlled by other governments ¿ are free to underwrite the candidates of their choice.

Because of the scope of the Citizens United decision, it will take close examination to see what can be done to restore the voice of the average citizen in elections. We must not stand by as corporations threaten to dominate our democratic process. If the race in Massachusetts showed us anything, it's the power of voters. In our democracy, that power ¿ not the power of corporate wealth ¿ should decide our elections.

CLETA MITCHELL

Partner at Foley & Lardner who works in campaign finance law; filed a friend-of-the-court brief in support of Citizens United, on behalf of two advocacy organizations opposing the ban on corporate expenditures

The Supreme Court has correctly eliminated a constitutionally flawed system that allowed media corporations (e.g., The Washington Post Co.) to freely disseminate their opinions about candidates using corporate treasury funds, while denying that constitutional privilege to Susie's Flower Shop Inc.

New Populist in Chief Barack Obama and congressional Democrats are howling, pledging hearings and legislation to reverse the court's decision. But don't look for Coca-Cola television ads endorsing or opposing candidates. That isn't the way business works, thinks or acts.

The real victims of the corporate expenditure ban have been nonprofit advocacy organizations across the political spectrum. After the 2004 election, the Sierra Club paid a $28,000 fine to the Federal Election Commission for distributing pamphlets in Florida contrasting the environmental records of the two presidential and U.S. Senate candidates. Because the Sierra Club is a corporation, the FEC charged it with making an illegal corporate expenditure.

What businesses, large and small, should do is spend time and money educating their employees, vendors and customers about candidates and officeholders whose philosophies and voting records would destroy or permanently damage America's free enterprise system.

Why are Democrats afraid of that voice?

ROBERT LENHARD

Of counsel at Covington and Burling; chairman of the Federal Election Commission, 2007

The balance of power in political contests has shifted dramatically away from candidates running for office and toward corporations and unions seeking to advance their policy agendas. Candidates are now far more vulnerable to unexpected negative-ad campaigns, funded by corporations and unions either directly or through nonprofit groups.

Campaigns, corporations and unions can all now spend as much as they want on campaign ads. But campaign finance laws dramatically limit how much candidates (though not corporations or unions) can raise and from whom. Generally, candidates may only accept contributions up to $2,400 per election from individuals and up to $5,000 per election from PACs. In contrast, Citizens United allows corporations and unions to spend unlimited sums attacking or supporting candidates. So picture this: An interest group makes a single phone call to raise $250,000 for attack ads in the waning days of a campaign. The candidate must find more than 100 willing donors, able to give the maximum permissible $2,400 contribution, to answer those ads with an equivalent buy.

One solution is for Congress to repeal the limits on how much and from whom candidates can raise money. However, those who see the court's opening of the doors to unlimited corporate spending as a problem are unlikely to see unlimited corporate contributions to candidates as the solution. Rather, Congress should repeal the limits on how much national political parties can spend in coordination with their candidates, which might restore some balance to the system.

KENNETH GROSS

Leads the political law practice at Skadden Arps; former associate general counsel of the Federal Election Commission

Contrary to popular reports, the sky is not falling. The Citizens United decision will not profoundly affect the for-profit corporate community. Government affairs operations in that community are based on the development of long-term relationships, supported by directly giving through PACs and personal contributions.

The rules regulating direct and PAC contributions have not changed one iota. Also, the requirement that political spending under this case be independent of a candidate is antithetical to the overarching mission of how a government affairs operation works. So, the "club" that the Supreme Court has given corporate America is an unwieldy one.

No doubt, trade associations will look for ways to raise funds to attract or support candidates, but they will not find many deep, willing pockets among corporate members. Budgets are tight and shareholders will be keeping an eye on corporate spending. Also, many corporations have already signed on to transparency agreements regarding political spending. So, funding by publicly held corporations of groups trying to disguise their mission will be few and far between. This may not be the popular, prevailing view of the implications of the Citizens case -- but it is likely to be at least the short-term reality.

ANNA BURGER

Secretary-treasurer of the Service Employees International Union

There can be no doubt: The voice of everyday working Americans in the political process will be muted. How can they compete for airtime with the deep pockets of multinational corporations? The court's decision has said loud and clear that Mr. Smith has no business in Washington -- that seat's been sponsored by Wal-Mart.

The five-justice majority might think that the interests of corporations outweigh women and men who work, but our 2.2 million members are not going to sit idly by and watch working people get sidelined. Unions like ours are here to give a voice to working people. We do it through our nurses', janitors' and security officers' voluntary contributions. Repeat: voluntary. You're talking about people who make $12 an hour choosing to give part of their paycheck to give voice to their political concerns. There is no comparison between that worker and a corporation that will funnel their shareholders' money straight to a campaign's coffers.

We'll start working immediately for better transparency, better disclosure rules and making sure shareholders have a say in how corporations spend their money. For labor, being able to spend a few extra dollars is not worth walking away from our core democratic principles.

BEN GINSBERG

Partner at Patton Boggs; national counsel to the Bush-Cheney presidential campaign, 2000 and 2004

The voices of candidates and political parties just got much quieter. While robust First Amendment debate is the big winner from Citizens United, the current limits on contributions to candidates and parties create an imbalance that must be fixed.

The 35-year effort to limit contributions to candidates and parties has now resulted in a system about to be utterly dominated by special interests ranging from corporations to unions to ideological nonprofits. The solution that would allow candidates to control their own messages and agenda, in light of the court's bright constitutional ruling, is to increase the amount of money available to candidates.

Radical thinking, but necessary to get the system back in balance. So that candidates can spend their time campaigning and talking policy instead of fundraising, let the parties raise much more money to fund the campaigns. Put limits on how much candidates can raise directly for parties, but resurrect the parties so that corporations and unions and wealthy individuals don't define candidates. We have to recognize the imbalance now created while recognizing the court's clear message that more speech is good.

ED ROGERS

White House staffer to Ronald Reagan and George H.W. Bush; chairman of BGR Group

With the Supreme Court ruling that clears the way for uninhibited corporate and union spending on federal campaign advertising, maybe next our rulers will get around to doing the right thing.

Previous court rulings have made it possible for billionaires and anonymous gangs (also known as 527s) to spend all they want. But political parties and the campaigns themselves are limited in how they can collect and spend their money.

This is dangerous. The two-party system has served us well. We should seek to strengthen it; instead, we do the opposite. For an elected official to be committed to a party of principles is very different than being beholden to an outside group that has narrow commercial or selfish interests.

Our elections are beginning to look like rag-tag variety shows where anyone can put his act on the stage. The candidate may or may not be the director of this spectacle -- or have the spotlight. How does this serve the public good?

As long as we limit the party's donors and restrict how campaigns can raise and spend their money, we dilute an important connection between the governed and government. We should remove the limits and disclose everything. That way everyone gets a fair shot.

MARC ELIAS

Partner at Perkins Coie; represents the Democratic Senatorial Campaign Committee; general counsel to the Kerry-Edwards 2004 presidential campaign

Nearly every Supreme Court decision involving campaign finance is described as important, but few ultimately change politics. The court's decision in Citizens United v. Federal Election Commission will almost certainly be among the handful that fundamentally alter elections. In overturning its prior precedent (both old and new), the court ruled that corporations enjoy the same rights to independent speech in elections as individuals.

While few individuals exercise their right to fund multimillion-dollar advertising campaigns, we should expect that corporations will eagerly do so. Given corporate wealth and the legislative stakes, in many elections corporations will dominate paid campaign communications -- leaving candidates and political parties as secondary actors.

So, what is next? First, the FEC is in the midst of a rulemaking on how much "coordination" is permissible before an expenditure is no longer "independent." This is important because the court's decision hinged on the fact that corporate expenditures are only legal if they are independent of any candidate or party. The independence vs. coordination distinction is the only remaining hurdle to corporate-funded ads. Second, Congress will no doubt review this new landscape and consider legislative alternatives. Hopefully the FEC and Congress can restore the prior balance in the system.

KAREN FINNEY

Democratic consultant and commentator; former spokesman for the Democratic National Committee

At the very moment Americans' mistrust of big corporations, big government and large institutions has reached a fever pitch, the Supreme Court moved to replace a government of, for and by the people with a government that can be bought and paid for by just about any major corporation -- from Exxon to Russian-owned Lukoil to China's CPC Corp.

In a decision that supposedly ruled on the side of free speech, the court actually put a price tag on that speech. A price tag that could result in the voices of individual Americans being priced out of their ability to actually be heard, as millions of dollars from multinational corporations can now be spent to tip the scales in an American election.

Did the court really intend to suggest that a corporation, including one that is not American-owned, has the same right to free speech as an American citizen? As Justice John Paul Stevens pointed out in his dissent, the decision "would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans." Considering how simultaneously dangerous and ridiculous the "death panel" discussion proved to be, imagine what debates over immigration, trade or energy policy will be like as foreign companies can now funnel money in support of their very own Manchurian candidate.

Is this really "a step in the right direction," or "a blow for the First Amendment" as House Minority Leader John Boehner and Senate Minority Leader Mitch McConnell cheered?

It's hard to believe that this is what our Founding Fathers had in mind.


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