Beyond The Hype: How Citizens United Will -- And Won't -- Change Politics

The Citizens United decision will change politics -- of that there is no doubt.  Zero-sum, corporations would seem to seem to benefit from the changes in law. Corporations tend to be the one the side of Republicans, ergo; zero sum, the decision is a boon for the Republican Party.  It is hard to overstate the impact that previous Supreme Court decisions have had on campaigns, but there are reasons to believe that the changes we'll see in the short-term will be slow to evolve. And then the second-order effects of the changes -- how the law, parties and candidates adapt to the new rules -- will determine how significant CU becomes over the long-term. For 2010, think of the CU decision as providing the political world with a new weapons system. It's technologically advanced, but no one knows quite yet how to use it -- or what risks it really entails. There'll be some testing, certainly, but widespread use, in the near-term is probably unlikely.  Politics co-exists with an anti-incumbent, anti-Washington environment. Corporations exist in an environment where anything Big is suspect, including name corporations. Consumer brands tend to fare better, but the companies that might be inclined to invest in a particular candidate are those with deep claws in the economy. Smart companies aren't going to take risky bets. Private corporations will find it easier to more directly engage in politics than public corporations. It remains to been whether Congress will attempt to require shareholder buy-in for corporations that decide to spend out of their general treasury, but there are reasons to think that a law to this effect would pass muster with the courts. Of course, unions would be subject to the same rules. Democrats might not want to go there.

Corporate boards are risk averse. Smart CEOs don't want to risk internal conflict on boards when deciding which political candidates to back directly. there will be innumerable potential conflicts of interests; perhaps a board member for company X, which is regulated by Congressman Y, also sits on the board of company Z, which plans to run advertisements attacking Congressman Y for another reason. Down the line, one can envision three scenarios: corporate boards stay out of politics; corporate boardrooms become less ideological diverse; corporate boardrooms are riven by internal political disputes.

Plenty of attention has been given to the notion that corporate ads will crowd out candidate ads. But logically, the airwaves, already supersaturated, will become more so. The ROI won't be that high.

The locus of campaigning may not be candidate-centered or party-centered or even ideologically centered. For business to get the best bang for its buck, watch to see how they deal with members of Congress who form coalitions on the particular committees of jurisdiction that regulate their industries. Because parties are hypertrophied, candidates will find that it is much easier to essentially permit a company to build entire campaigns on their behalf -- voter registration, mobilization, message-definition -- all officially non-coordinated, of course, but, given the right strategists, doable in a way that allows the candidate to use his or her comparatively meager resources to run a "campaign" toward the end of the races. This scenario, I think, will become common.

It' s not clear how a corporation would explain to its employees the need to use general

treasury funds to directly support a candidate. It's not clear how they would have to disclose these expenditures, and it's not clear whether employees would -- as they already do with company PACs -- decide to opt-in or opt-out somehow. You can get that Democrats in Congress are thinking about how to throw obstacles in front of corporations intending to spend money. (These same rules, though, would apply to unions, who have found numerous loopholes that may be shut down.) There are plenty of skilled precinct-walkers for hire, but they tend to be snapped up by labor unions. Labor will still have a distinct boots-on-the-ground advantage, particularly when it comes to the quality of GOTV. It will take corporations quite a while to match labor's prowess. It's also unclear whether or how companies will be able to recruit employees to participate in direct advocacy GOTV efforts. (New growth industry: consultants who teach corporations how to be political.)

Brian Fung, a whiz-kid political thinker, suggests a tenth -- a company faces ostracism by the winner if its chosen candidate loses and the corporation's been firing both barrels during the campaign. For the most part, the corporations won't support the hyper-partisan candidates on either side. They're likely to support incumbents -- or, if the incumbent has done something really objectionable, an opponent. My guess that is corporations would probably be more likely to run milquetoast ads in favor of incumbents to curry favor with them, rather than ads attacking candidates. And if they do, the press coverage "Monsanto Attacks Ben Nelson" might not redound to their benefit.

Disclosure requirements: since Justice Kennedy included a strong defense of them in the ruling, will almost certainly be tightened. They might include a "stand by your ad provision," which might make some company CEOs nervous. "Monsanto is responsible for the content of this advertising." (Continuing growth industry: non-profits dedicated to disclosure!)

To quote our president's speechwriters, let's be clear: smart corporations are going to figure how out to play smart politics. Local candidates may well benefit from radio ads -- a mechanism of communication that remains effective among conservatives. When we think of corporations, we tend to think of the big names -- but small businesses, particularly those with healthy local advertising budgets, may well divert some of that money into supporting down-ballot candidates who have had direct authority over certain city, state or locality regulatory regimes. On an election law blog I monitor, several experts suggest that these types of entities might find it easier to contribute directly to a party or a candidate rather than do something themselves. (Spending limits remain in place nationally for federal races and, depending upon the state, for local races as well.)