How Citizens United v. FEC Applies to Nevada

This week the United States Supreme Court, in a 5-4 decision, issued an opinion with dramatic consequences for federal elections throughout the country and particularly in Nevada.  The Court overturned part of a federal law prohibiting corporations, unions and non-profits from using their internal funds to engage in campaign advocacy.  Although laws prohibiting corporate, union and non-profit contributions to candidates remain in effect (as do disclosure requirements), these entities are now free to expend unlimited funds to advocate for or against federal candidates. 

In Nevada, where United States Senate Majority Leader Harry Reid is headed for a tough reelection bid, this ruling opens the door to extensive privately-funded advertising both for and against his reelection.  Expect to see a lot of money spent on advertising in Nevada in the coming months as the fate of the Senate Majority Leader hangs in the balance.

The Citizens United case applies equally to state laws limiting the amounts corporations, unions and non-profits can spend on express advocacy.  However, because Nevada law already allows such expenditures, and because even contributions to candidates can be bundled and are therefore not limited, the case will likely not have much of an impact on what is spent on state and local races.  But the cost of advertising in state and local races will likely become much more expensive as advertising time is bought up in high profile federal races.  And of course, candidates for state and local offices that utilize privately-funded advertising, and the private entities providing that advertising, will still need to be careful to comply with the appropriate disclosure requirements.

Comments

[Doug Thornley]

Josh,

What do you think about the intersection of this case and the Court's ruling in Caperton v. A.T. Massey? In that case, the Court found that in "extreme cases," lawful donations to non-profit groups supporting the election of a then candidate for the West Virginia Supreme Court could amount to a due process violation requiring the recusal of the newly elected judge. Has the Court now established a difficult conflict to resolve - that corporations, unions and non-profit groups can spend as much as they like, but there is an unpublished and indiscernible point at which the lawfully unlimited donation becomes a disqualifying conflict of interest for judges and potential ethical issue for members of the Legislative and Executive Branches?

Do you think the point at which the amount (or circumstance) of the contribution obligates recusal of the elected official establishes a de facto limit on campaign contributions? It would be foolish to give so much money that the favored candidate is rendered ineffective.

[Chris Nielsen]

Josh,

What do you think about President Obama's "call out" to the Supreme Court during his State of the Union speech? Legally, was President Obama's characterization of the decision accurate as there have been numerous press reports that he inaccurately described the decision. Also, what are your thoughts about Justice Alito's reaction?

Do you know, historically, whether a president has ever referenced and criticized a specific decision of the Court during a State of the Union address?

[Josh Hicks]

Chris,

I thought the rebuke was unnecessary and unfortunate. It's not uncommon for a President to disagree with a decision from the Supreme Court, but to do so in a state of the union speech, with the Justices sitting right there, made the President appear very partisan in a speech where he was trying to unify the country. Our federal judges are not politicians, yet they were treated as if they are. With that said, I wasn't at all surprised by Justice Alito's reaction.

I think the President was inaccurate when he claimed the decision would open the floodgates to foreign advertising, as the decision did not change the existing prohibition on electioneering and contributing by foreign nationals or foreign corporations. Granted, many domestic corporations have foreign investors, but I think the President jumped past the question of whether domestic corporations with foreign investors would still be banned from electioneering under the unchanged federal election rules. I think that question needs to be answered before the argument can be made that foreign investors will be bankrolling American elections. It bears noting that Citizens United, the party to the decision, is a relatively small domestic non-profit organization.

[Josh Hicks]

Doug,

Sorry for the delay responding to your comment, I just read the Caperton case. It's a very interesting question you pose and one that I suspect will need to be addressed by the Court at some point. Although Citizens United was decided on first amendment grounds and Caperton was looked at from the due process rights of a party to a lawsuit, at some point the right of corporations to contribute could easily tread on the right of citizens to a fair hearing in a court, and even fair representation from the legislative and executive branches as well.

We may well see a Congressional effort to amend McCain-Feingold to address these concerns, once the Congress moves on from health care and the economy.