Jan. 21 marked the second anniversary of the Supreme Court’s decision in CitizensUnitedv. FederalElectionCommission. Already controversial at the time it was issued, the ruling has taken center stage in the debate over superPACs’ role in the race for the White House. Contrary to some suggestions that superPACs are acting under the radar and outside of any regulation, they are, in fact, subject to the same long-standing disclosure requirements and objective rules applicable to everyone else. To place superPACs in context, it is important to understand their origin. In CitizensUnited, the government was put in the unenviable position of defending a statute dictating who could speak, when they could speak and how they could speak. Specifically, the law prohibited corporations and labor unions from sponsoring broadcast advertisements that expressly advocate the election or defeat of candidates for federal office. Not only that, the law purported to impose a blackout period on certain ads that even mentioned candidates.
During oral argument, the government conceded that the law required adjustment “to give it some flexibility.” Under such a free-floating approach, perhaps some types of corporations, including certain issue-advocacy groups that accept funds from for-profit corporations, would be permitted to speak, while others, such as small family-owned businesses and trade associations, might not. Media corporations, on the other hand, always had been free to speak about politics and were exempt from FederalElectionCommission (FEC) disclosure requirements. Moreover, according to the government, some forms of speech, such as books and DVDs, might be permissible for corporations to underwrite, while others, such as video on demand, might not.
The Supreme Court did away entirely with this tenuous line-drawing. Consistent with long-standing precedent that independent political speech by individuals was not corrupting and thus could not be restricted, the court applied the same principle to corporations and, by extension, to labor unions as well. Shortly thereafter, the U.S. Court of Appeals for the District of Columbia Circuit held in SpeechNowv. FederalElectionCommission that political committees engaged in independent political speech also could not be limited in the amount of funds they could raise. This decision eliminated the anomaly whereby individuals were not subject to any restrictions on their own independent political speech, but when they got together with one or more other individuals, they suddenly faced limits on how much they could contribute to their own group.
Full Article: HUNTER: Sizing up the superPACs – Washington Times.