By Brenda Wright, Director of Democracy Program, Demos
The Supreme Court's unusual September 9 re-argument session for Citizens United v. FEC is about as dramatic a kick-off to the Supreme Court's term as Court-watchers have ever seen. Doug Kendall has ably explained key reasons why it's a blockbuster case.
Here is a little more background highlighting what's at stake.
The narrow
question originally presented by the case was whether an on-demand video showing of an anti-Hillary Clinton documentary during the 2008 election could be regulated as a political advertisement under the Bipartisan Campaign Reform Act (BCRA) because the sponsor -- a conservative non-profit group called Citizens United -- wanted to use for-profit corporate funds to help pay for the airing. That narrow question has been virtually obliterated by the Court's order at the end of last Term inviting briefing on whether Austin v. Michigan Chamber of Commerce and McConnell v. FEC should be overruled.
Austin and McConnell both upheld restrictions on political spending by for-profit corporations using corporate general treasury funds. So now the case is not about a feisty ideological non-profit and its political speech. It's about whether Countrywide Financial Services, Wal-Mart and Exxon must have the same right as individual citizens to make unlimited political expenditures in support of or in opposition to candidates for office.
Austin, decided in 1990, upheld a Michigan law that prohibited corporations from using general treasury funds for independent political expenditures supporting or opposing candidates for elective office, but permitted corporations to set up and administer special segregated funds for political expenditures to which shareholders or officers could contribute voluntarily. McConnell, decided in 2003, relied on Austin to uphold BCRA's limits on corporate or union-funded broadcast ads in candidate elections. Overruling those cases would mean that corporate political spending no longer needs to be funded by voluntary, intentional donations from shareholders or officers who actually support the corporation's political activity, but instead could come directly from the corporate general treasury.