Here’s a dispatch from Bill Black, who oversees Fleishman-Hillard’s global public affairs practice (and who is traveling as I write this), on what the U.S. Supreme Court’s ruling yesterday on Citizens United v. FEC might mean for companies’ and unions’ public affairs activities. He writes:

I am just returning from the annual National Grassroots Conference of the Public Affairs Council, at which I delivered a presentation on social media.  The Citizens United case was, as you might imagine, a major topic of discussion at this meeting.

First, a disclaimer.  I am not a lawyer and was follows is not a legal analysis of the case.  It is simply a report on what other, presumably more-informed, people are saying about its implications.

There were essentially two schools of thought on the consequences of this case.  Among public affairs practitioners, the early assumption was that this would bring about massive change in how public affairs advocacy is conducted.  Companies, associations and labor unions will now have the ability to try to directly influence the election or defeat of members of congress or candidates.  Therefore, the assumption was that large amounts of new money will be devoted to political communications in election years.  Organizations will now wield either the implicit or  explicit threat of huge independent advocacy campaigns in the states or districts of their targets among elected officials.  These campaigns can include all manner of advertising, grassroots activity and/or voter registration.  And the voter registration can be conducted with the explicit intent of the election or defeat of a candidate.  Thus, this view holds that vast quantities of new money will be entering the public affairs arena.

The other school of thought, advanced by a legal expert on lobbying and political regulation, is that the impact will be much more modest.  While associations might step up their activities to some degree, corporations are unlikely to markedly change their behavior, due to the potential reputational damage among customers, investors or other stakeholders of partisan political activities with corporate funds.   He was also of the view that there is no current bottleneck holding back significant amounts of political spending by special interests.

But here’s the biggest obstacle.  The political activity that this ruling allows must be independent of the beneficiary of the spending.  There can be no “coordination” between the corporation, association or labor union and the current or prospective elected official.  This lawyer asserted that “coordination” remains a vaguely defined term, so he advises his clients to be totally “antiseptic” in this area, meaning no communications, whatsoever.  Under this advice, a corporation conducting this sort of campaign would need to cease communicating with targeted members of congress, meaning no lobbying.  By definition, targeted members would key members and corporations would be loathe to end any communication with them.

This lawyer acknowledged that the situation could be different among industry groups or labor unions.  They might be willing to test the limits of the definition of the word “coordination,” and endure the litigation on behalf of their constituents.  So, if “coordination” is tightly defined to the point where some communications would amount to a “safe harbor,” allowing lobbying at the same time an organization is conducting an independent issue campaign, the money might flow,  as the PA practitioners expect (and hope).

This is just a first take and there remains quite a bit of  dust in the air.  But I thought this  might be useful to the other inquiring minds.  If there are any lawyers out there with a more educated view, please feel free to weigh in.

January 22nd, 2010 by Jeff Weintraub | No Comments
Tags: Citizens United v. FEC · U.S. Supreme Court