A recent U.S. Supreme Court decision overturning a federal ban on political campaign spending by corporations independent of candidate campaigns has prompted some questions about the impact of the ruling on state and local elections in Illinois. Although that decision has no immediate effect on the contribution limits legislation passed last year by the Illinois General Assembly, it could create an extremely hostile atmosphere with respect to any kind of contribution limits. It will certainly have an effect on Illinois campaigns for the U. S. House and Senate. It may embolden opponents of campaign finance reform, leading to court challenges of other aspects of campaign law and obfuscating legislative debates about other political reforms.
The following memo with Q&A about the decision is intended to clarify the issues. Illinois Campaign for Political Reform can supply additional commentaries and analyses that go into greater detail.
On Jan. 21, 2010, the U.S. Supreme Court overturned a ban on independent expenditures by corporations, opening the door to unlimited spending by corporations, labor unions and other organizations. The decision in the case of Citizens United v. the Federal Elections Commission overturned more than 100 years of settled law. Alarmed by the ruling, national reform organizations predict it will result in a dramatic increase in political spending by corporations and fear the 5 to 4 majority in the case could presage future rulings undermining campaign finance reforms, including laws requiring that the sources of campaign funds be disclosed to the public.
In the most simple of terms, the court ruled that the First Amendment to the U.S. Constitution gives corporations, like people, free speech protections and spending money is a form of speech. Justice Anthony M. Kennedy wrote for the majority: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” (In Kennedy’s lexicon, “associations of citizens” includes corporations.)
Q. Does the ruling change current Illinois law or the new limits that are to take effect next year?
A. No. Current Illinois law and the upcoming system of contribution limits do not prohibit independent expenditures by corporations, labor unions or other organizations. The U.S. Supreme Court ruling does away with the McCain-Feingold restrictions on independent corporate and labor advertising that opposes or supports federal candidates. And it impacts similar restrictions in the laws of 22 states, but Illinois is not one of those states.
Illinois’ contribution limits legislation, which was passed and signed last year, will take effect Jan. 1, 2011. While the Supreme Court decision is likely to impact the campaign landscape for the November elections, there is no direct and immediate impact of the court ruling on the Illinois limits law.
Q. The new Illinois law will put limits on corporate and labor contributions. Is that still allowed?
A. Yes. The Citizens United case is about spending that is independent of candidates and not about contributions to candidates. At the federal level and in many states, corporations and unions are not allowed to make direct contributions to candidates, but Illinois does permit them to make direct contributions to candidates. This court ruling is not about direct contributions to candidates.
Q. What about races in Illinois for the U.S. Senate and House?
A. Those races are governed by federal law, and this case does apply. It is quite possible that Illinoisans will see many tv commercials about candidates that are paid for by corporations, labor unions and other groups. As long as the groups buying the ads don’t coordinate what they are doing with the candidate, they can spend unlimited amounts of money.
Q. Will that have an impact on state races?
A. If there is a torrent of spending, it has the potential to drown out the messages of state and local candidates and change the level of voter turnout.
Q. Short of changing the membership on the Supreme Court, what can be done about this?
A. Some in Congress are considering various approaches. Among these is legislation that would require that corporations get advance approval of shareholders before spending corporate funds on political campaigns. Or if not advance permission, corporations might be required to report their political spending to shareholders. Some organizations are advocating a federal constitutional amendment (which even if successful, is likely to take a very long time.)
Q. Even that would still permit unlimited special interest spending. Is there any other alternative?
A. One improvement would be expansion of public funding systems that provide matching public funds to candidates collecting small contributions from many sources. That would encourage more grassroots participation as one answer to massive independent expenditures. That will be debated in Congress and in states that don’t now have public campaign financing, including Illinois.
Q. Anything else we can do in Illinois?
A. We need to close a loophole in the recently enacted limits legislation. The new law limits contributions by everyone except contributions in general election campaigns by state parties and by legislative caucus PACs controlled by the four legislative leaders. Contributions from parties and legislative leaders will be limited in primary campaigns, but the new law permits unlimited contributions by them in general election campaigns. Bills to close that loophole have been introduced in the House and the Senate, and we will work with members of both parties and both chambers to try to enact that legislation.
We also need to be diligent in ensuring that the campaign disclosure laws currently on the books in Illinois are enforced and protected.
If you would like more information about the Citizens United ruling, including a copy of the opinion, Illinois Campaign for Political Reform would be happy to provide additional analysis from national experts and field any other questions you have.