Citizens United: Is the Sky Really Falling?

by Tom Shields
February 16, 2010

It’s been awhile since a U.S. Supreme Court decision caused a ruckus in the world of politics such as we’ve seen since the Citizens United decision was handed down a few weeks back.

President Obama has led the chorus of attacks on the ruling, saying it would open the “floodgates” for special interests to take over our nation’s election process and “spend without limits.”

The president’s rants have reverberated across the country in editorials and on the Internet. The Detroit Free Press called the decision “radical and dangerous.” Vowing to hold hearings on the issue, one Maryland congressman labeled the ruling “un-American.”

But somewhere lost in all the hysterics is the practical application of the ruling. How will it actually change they way we run and fund political campaigns in this country?

Rich Robinson and Eric Doster, respectively, do a great job of attacking and defending the decision on a legal and public policy basis elsewhere in Dome. If you haven’t read their pieces yet, you should. (See Extra Points here and here.) This column will complete the so-called Citizens United Trilogy in Dome by taking a look at the ruling’s practical effect on the business of politics in Michigan.

Expenditures — not contributions
It’s important to remember that the Supreme Court overturned a decision made in 1990 in the Austin v. Michigan Chamber of Commerce case, where the Michigan Chamber was prohibited from spending corporate dollars to run a newspaper ad advocating the election of Richard Bandstra for the state House.

The recent Supreme Court ruling has nothing to do with making direct contributions to candidates. Direct contributions by corporations and unions to federal candidates and state or local candidates in Michigan remain illegal.

The only real change to Michigan campaign law is that corporations and unions may run advertising that advocate a “vote for” or “vote against” Candidate X.

So what’s the likelihood that in 2010 we’ll see the president of Kellogg Company on TV telling us that Candidate Y is gr-r-reat, or flyers on Domino’s Pizza boxes saying that Candidate Z really delivers?

Absolutely none!

While the ruling struck down the prohibition against expenditures, it left firmly in place the law that says expenditures and contributions must be reported to the public. It’s that transparency that will serve as a natural restraint to the “unlimited right to finance a marketing campaign for someone” that Mr. Robinson alleges.

Transparency is a much better equalizer than limits for a number of reasons.

First, Michigan corporations and unions can already indirectly support or oppose a candidate through contributions to issue advocacy campaigns run by business groups, labor groups, political parties, or organizations with clever-sounding names like Citizens for a Wonderful Michigan.

Issue ads can still express what a nice guy or an idiot a candidate is. They just can’t say, “vote for” or “vote against.” But, issue advocacy expenditures have no spending limits and there is no public reporting of expenditures or contributions.

It’s highly unlikely that many corporations would cede their anonymity to add the words “vote for” or “vote against” to an ad. Corporations tend not to be great political risk-takers.

Second, the marketplace is a natural limiter. Most businesses sell their products and services to folks on both sides of the street. As politically involved as the owners of the Stryker Corporation and Amway are, they aren’t going to hurt their bottom lines by involving their companies directly in partisan politics.

Third, I’m not sure how many candidates are eager for corporations or unions to pay for ads on their behalves. Would a judicial candidate want Sam Bernstein running endorsement ads, or would it be better if the Bernstein Law Firm gave Mark Brewer a couple hundred thousand dollars to run issue ads?

For the most part, corporations will stick with issue advertising that allows them to retain their anonymity, while delivering just as effective a punch as direct advocacy ads do. Direct advocacy expenditures might be used more at the local level, where the business community gets together to pay for endorsement ads for a local candidate, or law firms throw in to support an incumbent judge.

In his State of the Union Address, President Obama called out the Supreme Court, saying, “I don’t think American elections should be bankrolled by America’s most powerful interests…” Pelosi, Biden and many members of Congress stood and cheered as the Court sat in stoic silence immediately in front of the podium.

Missing from disclosure was that Obama, Pelosi, Biden and the member from Maryland who called the ruling “un-American” had all run — and won — state or local campaigns in one of the 28 states where both corporate expenditures and corporate contributions are allowed.

That may be a good indication that the sky is full of political hot air, but it certainly is not falling.

Tom Shields is founder and president of Marketing Resource Group (MRG), a Lansing-based political marketing and public relations firm.