Thursday, January 21, 2010

Will Citizens United v. FEC Change the 2010 Elections?

By Stuart Rothenberg

Moments after the Supreme Court recognized corporations’ free speech rights in its 5-4 decision, individuals and groups from the left to the right churned out an avalanche of statements and press releases.

Democrats, liberals and “good government groups” called the decision a “disaster,” predicting that corporations would drown future elections and cash and buy elections. Conservatives and Republicans praised the decision as expanding free speech.

At times like this, it’s best to wait for people’s blood pressure to return to normal and for the hyperbole to give way to reasoned analysis.

Most, though not all, observers seem to believe that the decision will bring more money into campaigns, certainly from business but also from ideological groups and non-profit corporations.

Most, but not all, also believe that political parties and candidates are the big losers, since outside groups will now be able to spend unlimited amounts while candidates and the party campaign committees will have relatively fewer resources.

That means that outside groups will, at least in theory, be able to dictate what the candidates are talking about. And unlike the past, when advocacy ads were prohibited from airing right before a primary or the general election, corporations will be able to air express advocacy ads at anytime during the election cycle.

“Unless the laws change, the political party bas we know it is threatened with extinction,” writes veteran Republican attorneys Ben Ginsburg and William McGinley, along with others, is a memo circulated hours after the Supreme Court decision.

Writing on his political law blog, McGinley said, “The hard money limits have the potential to force candidates and political party committees to a lesser role in the election process.”

Michael Malbin, the executive director of The Campaign Finance Institute, a non-partisan institute affiliated with The George Washington University, is more cautious about the practical effects of the decision, noting that other decisions in recent years have had a bigger impact on campaign finance.

He wonders whether business corporations, which often avoid controversies for fear of alienating consumers, will want to become major players in a U.S. House or Senate race. And he doubts that the decision will dramatically undermine political parties.

As for non-profit corporations, even they aren’t certain whether the decision means that they will spend dramatically more money in this year’s mid-term elections. “As with all non-profits, it all depends on fundraising. The court decision provides us with more options -- using ‘soft’ versus only ‘hard’ money for independent expenditures -- but not more money,” said one political non-profit decision maker.

Still, the psychological fall-out from the decision seems to add to the narrative that Republicans are more energized and the GOP is in a position to gain a significant number of House and Senate seats later this year.

“Given the possible range of outcomes from the best case scenario to the worst case scenario, this is the worst case scenario,” one Democratic operative told me after the Supreme Court’s decision. Whether that still seems true next October, it’s something else that Democrats didn’t need to worry about this year.