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February 26, 2010 |
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THE GUILTIEST
OF PLEASURES
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| Next Bisnow Breakfast & Schmooze. Law Firm Economics: Different models and the future. March 3. Low price. Sign up now! |
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| Between the national debt and Lent, everyone seems to be giving things up these days. One guilty pleasure we can’t resist: sweating the implications of SCOTUS’s controversial 5-4 ruling in Citizens United v. FEC. Up for grabs: The future of campaign finance law and the question of whether corporations (if they’re just like individuals) have feelings. Today we let some of the city’s best have at ‘em. |
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The American Constitution Society convened preeminent election law practitioners at the National Press Club Wednesday. Here’s Kraft Foods’ chief counsel for corporate and gov’t affairs Jim Portnoy and NYU Brennan Center’s Monica Youn. A former Rhodes Scholar and 1st Amendment dynamo, Monica called the Court’s majority opinion (that independent expenditures can’t lead to corruption) “astonishing” and predictive of a profoundly disastrous rise in “corporate electioneering.” Jim, invoking Chicken Little, said (in finer English than we can muster) that the sky ain’t falling: “The reality pertaining to changes in election law is rarely as serious as the rhetoric.” In a world where corporations already had few external (and many internal) constraints on their ability to influence elections, says Jim, “the added level of permissible political involvement is not sizeable.”
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Far left is Wiley Rein’s Jan Baran, who helped write the Chamber of Commerce’s amicus brief for Citizens U., next to former DNC general counsel and Sandler, Reiff & Young name partner Joseph Sandler. Joseph says trade associations that take advantage of opportunities for advocacy created by the Court’s ruling risk being re-classified as federal political committees. Jan, the panel’s self-proclaimed “pet-Republican,” says despite the fact that 26 states have no restriction on corporate and union spending in elections, the government was unable to evidence “any instance of independent corporate expenditures leading to corruption.” He also noted that in the MA Senate election, $4 million of corporate money was spent. He says that shows that Citizens really only affects the timing and content of corporate advocacy, not the amount.
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During a break, we snapped Tom Hicks, senior elections counsel to the Committee on Administration, which has jurisdiction over campaign finance law. Tom, who reports to chairman Bob Brady (D-PA), says the chairman has expressed worries that Citizens United is going to do to federal elections what corporate money has done to baseball: “Whereas 20 years ago, families could bring their kids to a game at a reasonable price, today, everyday Americans are priced out of games.” (If that means that food prices in Congressional cafeterias will match a ballpark frank, legislation aimed at muting the effects of Citizens United may move quickly.)
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COVINGTON’S TAKE ON CITIZENS
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Rob Kelner and Bob Lenhard, two of Covington & Burling’s top political law experts, tell us they’ve been working ‘round the clock to inform corporate clients, trade associations, and unions about Citizens’ implications. Rob, chair of the firm’s bi-partisan Election and Political Law group, says the name of the game hasn’t changed; it’s still “How to influence the political process without going to jail.” [Ages 5 and up, pieces sold separately.] What’s new is that trade associations, especially well-established ones, are in a dramatically better position to impact elections. “Corporations are going to do everything they possibly can to support candidates whose policies benefit their shareholders,” says Rob, “but they will get into trouble if they’re sloppy about it.”
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Bob, who served as an FEC commissioner from 2006-07, and chaired the agency in ’07, tells us the ruling could be advantageous to pro-business candidates running for office in the 2010 mid-term election. The scenario, he says, would play out like this: A corporation, or a trade association representing a coalition of corporations (e.g. Chamber of Commerce, Wall Street Alliance), takes advantage of the opportunity created by Citizens United and purchases $5 million of advertising expressly advocating for a pro-business candidate the week before an election. The pro-business candidate's opponents having nearly exhausted their campaign budgets just prior to the election (the norm), are caught flat-footed, perhaps fatally so, because there's not enough time for them to raise enough of money to fight back. Game over.
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THE CONTRARIAN
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For the final word, we circle back to Asa Gordon, exec. dir. of the Douglass Institute for Government, who we thought raised a provocative point in ACS panel Q&A. What led today’s conservative-leaning Supreme Court to make such an activist decision in Citizens United? If you understand the Court’s philosophical embrace of legal Darwinism, which Asa describes as valuing the voice of the corporate individual as the most highly-evolved expression of citizenly virtue, then it’s easier to grasp why the Court overturned 100 years of legal precedent to protect the corporate individual/entity’s voice from being eclipsed by that of the “uneducated masses.”
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| Please send story ideas to our legal reporter, Patrick Dowd, at patrick@bisnow.com |
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This newsletter is a journalistic news source which accepts no payment for featured interviews. It is supported by conventional advertisers clearly identified in the right hand column. You have been selected to receive it either through prior contact or professional association. If you have received it in error, please accept our apologies and unsubscribe below. © 2009, Bisnow on Business, Inc., 1323 Connecticut Ave, NW Washington, DC 20036. All rights reserved.
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