By Laurence Gold, a lawyer with Lichtman, Trister & Ross, PLLC in Washington, DC
Today or soon the Supreme Court will decide Citizens United v. FEC and, possibly, hold that the government cannot prohibit nonprofit advocacy corporations - and perhaps also business corporations and unions - from using their regular treasury accounts (and not just their individual-funded federal PACs) for explicit "vote-for" and "defeat"-type electoral messages to the general public. If the Court does that, then no person or group - except, possibly, foreign nationals - could be precluded from undertaking so-called "express advocacy" "independent expenditures" about federal or state candidates.
Much commentary on the case overstates how significantly that holding - overruling the Court's 1990 Austin v. Michigan Chamber of Commerce decision - would change constitutional law. The First Amendment already empowers businesses, nonprofit corporations, unions and other groups to publicly convey all but the most explicit election-influencing messages, and further protects their issue advocacy and lobbying. And, as a practical matter, corporations, unions and other groups only episodically exercise their substantial electoral communications rights, due to budgetary pressures, institutional culture, averseness to controversy, federal tax disincentives and sensitivity to shareholder, member and public opinion. Those constraints won't disappear.
Progressives would do well to pay equal attention to what might happen if the Government wins this case. Rather then simply trying to preserve the status quo, the FEC and its amici - groups that lobby for more campaign finance regulation - are urging the Court to dramatically reduce First Amendment protections for independent speech. They argue that independent political speech can be outlawed on the theory that it "corrupts" candidates and officeholders because it is intended to "curry favor" with them and might cause them to "feel indebted." But the Court has consistently rejected that as a rationale to restrict speech, as distinct from political contributions that plainly risk a quid pro quo - the purchase of official favors - and only indirectly implicate free-speech interests.
It would be distasteful enough if politicians' "feelings" could trump group free-speech rights in the electoral sphere. But it is hard to discern how even non-electoral speech that discusses public officials could avoid the same fate. Although the Government has backed off from its previous contentions in Citizens United that federal election law can ban books, its First Amendment posture in the case remains aggressively censorial.