Analysis: A few open, or not so open, questions
on Jan 21, 2010 at 1:19 pm
Analysis
After more than a year of study and writing, the Supreme Court on Thursday produced a ruling that may make the hundreds of millions spent in past presidential and congressional elections look like a pittance. By removing existing restraints on what and when profit-making and non-profit corporations may say during federal election campaigns, the Court has significantly raised the financial stakes for all such elections, beginning with the primaries this year — the first of which occurs in 12 days, in Illinois. But the Court did not directly settle everything with its release of 176 pages of opinions at 10:01 a.m. Thursday.
Some of the questions that linger are truly open questions after the ruling, some may have been partly settled, and some may actually have been settled, if only by implication.  Justice Anthony M. Kennedy’s controlling, 57-page opinion sweeps broadly, but it does not reach every issue that the highly complex mechanism of federal campaign finance regulation has raised.
Perhaps the most important question that one might ask in the wake of Citizens United v. Federal Election Commission is: are labor unions as free as corporations to spend as much as they wish — independently of candidates — to influence elections to Congress and the White House? The likely answer is: Probably, but check back later.
The parts of the federal law that the Court struck down, barring corporations from using their own in-house cash to spend on politics, are written to apply equally to labor unions. And there are sections of the Kennedy opinion that seem to treat corporations and labor unions interchangeably. For example, the most important single conclusion the Court draws is that the identity of the political speaker (spending money on politics is, to the Court, speaking) cannot be the basis for restrictions on their independent political spending. Thus, it would seem, the same limitation that was nullified today for corporations may be gone for unions, too.
But that was not an explicit issue in the case, and the Kennedy opinion never says explicitly that the curbs are lifted for unions. Even so, that is an issue that may well be settled, but only by applying the rules of logic, rather than anything conclusive that the Court said.
Another question, and this one the Court explicitly said it was not deciding, was whether foreign corporations with operations in the U.S. — placed under the same restrictions as domestic ones — might now be able to claim the same First Amendment protection if they want to spend large sums to try to influence U.S. federal elections. Perhaps that is one example of the next generation of campaign finance lawsuits.
The Court also did not rule on the flat ban — in effect for corporations since 1907, and for labor unions since 1947 — on donations that they might want to make directly to a federal candidate or a candidate’s campaign organization. That was not an issue in the Citizens United case, and it was discussed only briefly in the Kennedy opinion. With the Court speaking with such fervor about the need for open and robust political spending, one might wonder whether a donation to a candidate is all that different, constitutionally, from paying for an independent ad that says vote for that candidate or vote against the opponent. Does anyone in political finance have a yen to bring that challenge? That is not clear.
And that last question gives rise to an even broader one: might this Court be willing, sooner rather than later, to cast aside the clear distinction it has drawn since 1976, declaring that political spending gets more constitutional protection than political donating? In terms of message to the voters, does writing a check for an advertising campaign to help out a candidate speak any more loudly than writing a check to the candidate directly? Or differently? Justice Kennedy nowhere even alludes to this distinction, and whether it might now be drawn into question under the sweeping freedom-to-spend rhetoric of this opinion.
There is another broad question that largely goes unaddressed in this ruling, but it perhaps should be asked anew in the wake of this decision. It involves a project that the Court, the Federal Election Commission, and politicians and their lawyers have been dealing with for years — defining the difference between a political message (in an ad, for example) that involves “express advocacy” and one that involves “issue advocacy.” The former might well be an ad that says explicitly “vote for” or “vote against” Candidate X. The latter might well be an ad that says write to Senator X (a pro-choice lawmaker) and tell her you are a pro-life voter. The Court has said repeatedly that Congress has more power to curb the former than the latter.
But Thursday’s decision, using a broad free-speech rationale, struck down an explicit ban on use of corporations’ in-house funds to pay for an ad that would say “vote for” or “vote against” Candidate X (a ban that applied only during election season, fairly close to a primary or general election day). One question is whether there is anyone in politics to whom that “express versus issue” distinction still applies? That is a truly open question.
Given that there is always someone in American politics interested in testing any limit that any part of the government imposed on political expression, one can easily imagine that Citizens United is not the last word on questions it did not resolve.
