Money has always been and will always be a part of the American political process. Any candidate for federal office can confirm this notion as a majority of his or her time is spent “dialing for dollars.” Congressmen especially know this be true since they have to run every two years. What has really changed over the past few cycles has been the influence of outside spending in campaigns and on issues.
Prior to the United States Supreme Court’s decision Citizens United, corporations and unions could advocate for the social welfare utilizing IRS Code Section 527. However, this type of political advocacy placed limits on the content advertising, including the inability to expressly request action (“Vote for Joe Smith”, etc.), and on the timing of the advertising – no more than 30 or 60 days from an election depending on the situation.
Citizens United changed the game and created what is now known as super PACs. Corporations, individuals, and unions may now give unlimited funds to these entities, but super PACs may not coordinate with any candidates for office.
Here are four ways the Supreme Court rewrote the rules for corporate speech with their decision:
1. Money is considered speech.
The opinion of the court made the point that anyone who takes part in free speech uses money “amassed from the economic marketplace to fund [their] speech.” Therefore, if a corporation wants to spend money on a campaign or issue, they are free to do so because funding corporate speech with corporate money is no different. While there are still limits on how the money may be spent, Citizens United freed corporations from many of the previous constraints on corporate speech.
2. The “magic words” can go away.
Anyone that has worked in campaign independent expenditure efforts knows to avoid the “magic words”: elect, vote for, defeat, oppose, etc. Citizens United strikes down this ban for super PACs and allows them to participate in express advocacy. The court overruled two previous Supreme Court decisions – Austin and McConnell – as part of Citizens United.
3. Advocacy can occur through Election Day.
In striking down previous case law in Austin and McConnell, the Supreme Court also removed the previous ban on independent corporate advocacy occurring within 30 or 60 days from the election. Out of all the changes as a result of Citizens United, this one makes the most sense because it was the biggest limit on freedom of speech, in my opinion. Telling someone they can speak up until a certain date but then they have to be quite thereafter just doesn’t make sense.
4. Candidates are no longer necessary to disseminate a message.
While no one wants to admit it, candidates for office tend to deliver messages to the public that are in line with those donating to their campaigns. If a corporation wanted to speak directly to the public on an issue prior to Citizens United, they had to follow the strict rules associated with 527s. Now with super PACs, corporation can go directly to the voting public with their message and spend unlimited funds in the pursuit thereof.
Despite these changes, it appears that publicly traded companies are not jumping on the free spending bandwagon. In fact, less than 1% of the money that went to super PACs in 2012 came from publicly traded companies. The large majority of the money came directly from individual donors.
What remains to be seen is whether this new conduit for corporate speech becomes a viable, utilized channel for public companies. I guess no one is clamoring to be the first corporation to test the boundaries and see what flack comes from the media.
On a briefly related note, while the Supreme Court showed its willingness to touch this sensitive issue of corporate spending in politics, it recently declined to hear a case challenging corporations’ ability to contribute directly to federal campaigns.
DISCLAIMER: This specific post is a submitted assignment for my Master’s in Public Relations program.