Private: Issue Brief Examines “Aftermath” of Citizens United v. FEC

Like the millions of gallons of oil that have spewed into the Gulf of Mexico, a torrent of corporate dollars is likely to be unleashed into the nation's political system at a pace and size unseen before, because of the Supreme Court's recent opinion in Citizens United v. FEC, according to an Issue Brief released by ACS.

In "Citizens United: The Aftermath," Monica Youn of the Brennan Center for Justice at New York University Law School studies public reaction to the ruling, how it is likely to shape forthcoming elections, and offers solutions on how to cap the rush of corporate dollars into the nation's electoral politics.

The decision, Youn writes, "will affect every election for years to come. The 5-4 decision undermined 100 years of law that restrained the role of special interests in elections. By holding for the first time, that corporations have the same First Amendment rights to engage in political spending as people, the Supreme Court re-ordered the priorities in our democracy - placing special interest dollars at the center of our democracy, and displacing the rightful role of voters."

Before Citizens United, corporations were constrained in their ability to engage in electioneering. Corporations, Youn notes, had to create PAC funds, "amassed through voluntary contributions from individual employees and shareholders who wished to support the corporations' political agenda. Such funds were subject to federal contribution limits and other regulations. Now however, the Citizens United decision will allow corporations that wish to directly influence the outcome of federal elections to draw from their general treasury funds, rather than PAC funds, to support or oppose a particular candidate."

The narrow decision in Citizens United did leave a "door open for Congress to craft regulation over corporate expenditures, as long as the regulation is based on a strong factual showing on the relationship between such expenditures and corruption."

There may be room for tougher laws requiring corporations to disclose to share holders how expenditures are being used on political activity and in a Brennan Center report, new regulation should be sought that would require "corporate managers to obtain authorization from shareholders before making political expenditures with corporate treasury funds ...." The report also suggests regulation to require "corporate managers to report corporate political spending directly to shareholders."

But the individuals and who have worked for years to weaken regulations of corporate campaign spending are also striving to shred the disclosure regulations that are still intact. Youn notes that there is a "wave of legal challenges aimed at eliminating the (already weak) disclosure requirements for independent expenditures."

Another way to stem the flow of corporate dollars into elections is to bolster public financing programs, Youn writes. "Systems that award multiple matching funds for small contributions, like that proposed in the Fair Elections Act, introduced by Illinois Senator Richard Durbin and Connecticut Representative John Larson, as well as the public financing system in New York City, amplify the voices of actual citizens, and can be an effective counterbalance to unrestrained corporate spending."

But like the challenges to disclosure regulations, Youn notes "a new slew of challenges" to public financing systems. For example, the U.S. Court of Appeals recently upheld Arizona's public financing system against a legal challenge, "but the plaintiffs in the suit have already filed an emergency motion to stay the functioning of the decade-old program pending appeal to the Supreme Court. A similar lawsuit challenging Connecticut's public funding programs is pending before the Second Circuit, and two new regulations were recently launched in Wisconsin, again by the same opponents of reform who brought the Citizens United lawsuit."

See Youn's entire Issue Brief here.

Campaign Finance, Democracy and Elections