- The Washington Times - Monday, January 11, 2010

Possibly coming soon to your TV screen: election-year Super Bowl-style ads promoting congressional and presidential candidates, paid for by some of the nation’s largest corporations and labor unions.

It could happen. For decades, business and union money has been largely shut out of state, congressional and presidential campaigns. But the Supreme Court might be about to change that in a big way.

The court has raised a range of high-stakes possibilities that could let corporations, unions and wealthy individuals spend money on elections in time for this year’s congressional races, not to mention the 2012 presidential contest. A ruling is expected as early as Tuesday.

At one extreme, the justices could give corporations, unions and activist groups funded by wealthy donors new legal freedom to run election-time ads for or against candidates.

Depending on the details, such a ruling could lay the groundwork for wealthy interests to press their rights further in future cases and argue they should be able to give money directly to presidential and congressional campaigns.

Going further, the court could strike down state laws banning such donations from campaigns. The justices also could decide that little or no information need be disclosed about such fundraising and spending.

At the other end of the spectrum, the court could stand by current federal law. It bans unions and incorporated entities such as businesses, trade associations and interest groups from donating to national party committees and congressional and presidential campaigns. It also prohibits, close to elections, the airing of ads that urge voters to support or oppose federal candidates.

The court also could let similar state laws stand.

Or it could come down somewhere in between, perhaps giving corporations and unions a freer hand in running election-time ads independent of candidates, but requiring the disclosure of related fundraising and spending.

The case involves a film that criticized then-presidential candidate Hillary Rodham Clinton during the 2008 Democratic presidential primaries.

A conservative group, Citizens United, produced the film and planned to air ads promoting its distribution through cable video-on-demand. The Federal Election Commission said the film amounted to a campaign ad and that Citizens United, an incorporated entity that takes corporate money, could only use limited, disclosed contributions from individuals to promote and broadcast it.

Citizens United disagreed and sued; lower courts sided with the FEC. The Supreme Court agreed to take the case and decided to also consider whether to part ways with past high court decisions upholding restrictions on corporate and union election spending.

If the justices decide to undo all or part of the past rulings, they could open a door to corporations to participate directly in elections for the first time since a 1907 law, the Tillman Act, barred such spending.

They could scale back substantially the 2002 campaign-finance overhaul law authored by Sens. John McCain, Arizona Republican, and Russ Feingold, Wisconsin Democrat, and pave the way for undoing strict limits on corporate and union giving in federal elections imposed in the first half of the last century to fight corruption.

The U.S. Chamber of Commerce, AFL-CIO, National Rifle Association and others on Citizens United’s side contend they have a right to be involved in elections.

In arguing for an end to restrictions, the Chamber contends current spending and disclosure rules unfairly deprive voters of ads, threatening “the First Amendment rights of willing listeners.” Requiring disclosure of donors for political ads inhibits companies from contributing, the group says.

The government contends the current campaign-finance rules are constitutional. The Democratic National Committee is backing the government’s position. In a brief co-filed by attorney Bob Bauer, who was later named White House counsel, the DNC argued that if the court swept away corporate spending restrictions, for-profit companies could overwhelm the power of individual small-dollar donors.

It also would leave political parties, which cannot raise unlimited sums, at a disadvantage in responding to a barrage of corporate political ads attacking their candidates or supporting their opponents, and there “would be a heightened risk of corruption,” the Democrats argue.

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