Peckinpaugh and Roberts: Citizens United Flip Might Not Matter Much

Posted June 12, 2012 at 3:17pm

In the coming months, the Supreme Court may take up the issue of whether a Montana law prohibiting corporate independent expenditures is constitutional. In other words, Citizens United redux.

The Supreme Court has already issued a stay of a Montana high court decision upholding that law, but even if it took this opportunity to reverse its limited holding in Citizens United, it will not likely have much effect because in this cycle individuals — not corporations — are the ones bankrolling the super PACs making the biggest splash.

Remember what Citizens United actually decided. The court held that independent expenditures, by definition, “do not give rise to corruption or the appearance of corruption,” and therefore, under the First Amendment, may not be limited — even when made by a corporation.

But Citizens United did not create any new political speech rights for individuals, nor did it create the super PAC model through which individuals and corporations can pool contributions of unlimited amounts to be used for independent expenditures. A series of other decisions in an appellate court and the Federal Election Commission created that system.

Should the Supreme Court take up that Montana case, it could narrowly find that independent expenditures by a corporation suggest the appearance of corruption in a way that independent expenditures by an individual do not. And in that case, the narrow holding of Citizens United as it applies to corporations would be overturned.

And if it does, so what?

Super PACs could still exist but would only be able to accept individual contributions. And a campaign finance system without corporate money funding independent expenditures would not represent much of a change from what is already happening in practice. Independent analyses of FEC reports show that more than 80 percent of all super PAC contributions are coming from individuals rather than for-profit corporations.

Many corporate boards, rightly afraid of alienating a large segment of their customer base, are choosing to avoid using their corporate resources in publicly disclosed contributions to super PACs. One analysis shows that public companies have contributed less than 1 percent of all funds to the super PACs supporting Republican presidential candidates in this election cycle (through the first quarter of 2012).

Some boards of large, publicly held companies are increasingly establishing internal policies against making corporate political contributions of any kind, including to super PACs. A growing trend of shareholder initiatives, designed to amend corporate governance to prohibit political contributions entirely or demand public disclosures well above those required by law, will only cause an increase in the number of companies with these types of policies in place.

Those few remaining corporations that are making super PAC contributions are often politically active private or closely held corporations — not necessarily the large, publicly traded corporations that were often the bogeymen of the campaign finance system that pundits were expecting back in early 2010 when the Supreme Court decided Citizens United.

Even if the law changes again, political speech by concerned citizens or groups — with ample means — will find its way into the public discourse.

Individual activists have been able to make independent expenditures in unlimited amounts since the Supreme Court established modern campaign finance law precedent in 1976 with Buckley v. Valeo.

Prior to 2002, when Congress passed campaign finance reforms intended to block corporate money from influencing elections, corporate and individual donors often pooled their resources by making unlimited soft money contributions to national political parties that generally helped their favored candidates. Now, super PACs offer donors a decentralized approach to more efficiently support those candidates with whom they agree, or oppose those with whom they disagree.

Unlike some other types of fundraising methods, virtually every donor to a super PAC is disclosed. And because of these strict disclosure requirements, we know that individuals are the ones making the vast majority of direct contributions to super PACs and that public companies are barely participating.

Even though unlikely, the Supreme Court could soon take up the Montana case and might even overturn Citizens United and the limited rights for corporations narrowly outlined in that case. But individuals, who have provided the lion’s share of funds to super PACs, will still be free to make all the political speech they want through independent expenditures.

So, while it’s tempting to blame Citizens United for all that ails political campaigns, the reality is that this Supreme Court decision has little bearing on individuals, who can continue to exercise their constitutionally protected rights to express political speech.

Tim Peckinpaugh and Steve Roberts are attorneys in the Washington office of the K&L Gates LLP law firm.