White House Counsel Bauer May Reign In Corporate Political Money Adverse To The President

Robert Bauer, a Washington, D. C. political power lawyer who recently became White House Counsel, is likely to emerge as the most important in-house counselor to President Barack Obama and his reelection campaign committee as they begin to gird themselves against what could be a torrent of negative advertising openly attacking the President’s leadership, sharply criticizing his policies and aggressively advocating his defeat.

That spate of advertising probably will be fueled by gushers of political money, in the hundreds of millions or even billions of dollars, which corporations are now free to spend seeking to influence the outcome of the 2011 Presidential Election. The prediction is fair in light of the recent decision of the SCOTUS in Citizens United v. FEC. The Supreme Court declared, in a 5-4 decision, that corporations have a free speech right protected by the First Amendment to tap their vast treasuries, without government interference or regulation, and spend unlimited sums of money on advocacy and advertising to defeat or support candidates in federal elections for political offices.

Bauer formerly chaired the political law practice group of Perkins Coie, a national law firm. He is an expert in campaign finance and the regulation of political money. In addition, he has authored several books and maintained a weblog on the subjects. He also has lectured and litigated on the subjects.

More important for the President, Bauer has been his personal lawyer. He represented President Obama in the litigation challenging the President’s nationality and qualifications to serve in office. There is no question about Bauer’s loyalty to the President, and his motivation to lawyer and advocate for the President with zeal.

So what’s the bottom line?

Corporations may spend their treasury money as they please to make independent expenditures playing politics. Having said that, there are still regulations in place limiting their political activities. Those regulations prohibit direct corporate contributions to political candidates; limit the amounts of contributions which can be made to political candidates through corporate political action committees; and, outlaw any political spending in federal elections by foreign corporations.

The law is clear with respect to corporations making independent expenditures. What’s not clear is whether corporations have a First Amendment free speech right to collaborate with political candidates on the expenditure of corporate political money to advocate or advertise the defeat of their opponents. As stated by Craig Engle, head of the Political Law Group at Arent Fox: “These expenditures must still be made independent of the candidate’s campaign.” Supreme Court Strikes Corporate Speech Prohibition in Campaign Finance Case (01-21-10) Link:  Arent Fox Article  That issue alone is likely to generate a slew of complaints, compliance investigations and enforcement suits.

Bauer’s task is clear.

He must give counsel and direct implementation of a broad strategy to monitor and review closely corporate political expenditures for advocacy and advertising adverse to the President. He and his staff must respond quickly and aggressively to any negative advocacy and advertising that damage the President. They also must take the necessary action to assure that the related expenditures comply with the regulations which have survived the Supreme Court decision.

Small Business Political Money & Free Speech-Will Their Political Activism Lead To Gushers Of Political Cash And Campaign Ads?

After considering Ted Olsen’s comments in The Wall Street Journal about the impact of the SCOTUS decision in Citizens United v. Federal Election Commission, it is clear that the free speech rights of small business and their entrepreneurs were as much intended targets of the decision as those of major corporations. Olsen, the lawyer for Citizens United, said:

 The decisions that the Court today overruled rested on the faulty premise that political speech can be restricted in order to prevent corporate money from “distorting” political discourse. In fact, the vast majority of corporations are either nonprofit advocacy groups–like Citizens United–or small businesses. Far from “distorting” the political process, the speech of these corporations reflects the views of their members or the entrepreneurial individuals who formed the corporation. Permitting these individuals to have a voice in the political process adds an important perspective to the public debate and enables individuals of limited means to band together to counterbalance the political speech of the super-rich. McCain-Feingold silenced those speakers, and, as the Court concluded, was therefore impossible to reconcile with the First Amendment. 

That was a mouthful. Link: http://blogs.wsj.com/law/2010/01/21/free-speech-v-democracy-rounding-up-the-citizens-united-reactions/tab/article/

Apparently, Olsen envisions significant and substantially increased levels of activism in policy making and politics by thousands upon thousands of small businesses and entrepreneurs. Those are the legions of “S” Corps, LLC’s, LLP’s and their owners. For the most part, they have not been players in politics: they have not set up PACS; they do not have lobbyists; and, have not spent money on political ads.

But, they will have a lots of political money, heretofore untapped gushers of political cash in the millions of dollars, to spread around on the political playing field and deploy for all types of public affairs advocacy; to influence policy; and, to take sides and spend those millions on ads for political candidates they like or dislike influencing the outcomes of elections.

In that respect, whatever the original intent of the litigation was, the Citizens United decision has fostered a new, unchartered and possibly unlimited frontier for the deployment of political money and advertising dollars spent lavishly not only by major corporations, long term players in politics; but also, by small businesses and their owners, the new entrants.

 That conceivably will revolutionize, and perhaps even radicalize, politics, policy making and election outcomes well beyond the bounds as we now them!

Corporate Free Speech Decision May Usher In A New Era Of Political Rapid Responses & Heightened Public Interest To Corporate Activism

The SCOTUS decision in Citizens United v. Federal Election Commission could unleash nearly unlimited expenditures of corporate treasury funds in politics.

One view is that the full impact of the decision probably will not be limited to an unprecedented expansion of corporate political advocacy directed at policy and the election or defeat of candidates for political office.  Another view, as articulated by Dr. Stephen R. Weissman, a former associate director for policy at the Campaign Finance Institute, is that the “decision is unlikely to change the political situation on the ground very much.” Los Angeles Times, Opinion (January 28, 2010). Link: http://articles.latimes.com/2010/jan/28/opinion/la-oe-weissman28-2010jan28

In any event, the decision in Citizens United is also likely to usher in a new era of political rapid responses by savvy politicians on a range of policy issues affecting corporations.

As corporations raise their profiles, advocate and engage in politics by hitting politicians for their  positions on policy issues, savvy politicians intuitively will respond and hit back. Increased spending for corporate speech and political advertising should generate significant media coverage. That spate of news articles, commentaries and editorials on corporate public affairs matters ostensibly will heighten the public’s interest.

Heightened public interest expands the political playing field. The more intense the debates, the attacks on politicians and the  media coverage, the better for the politics in general.  Savvy politicians and candidates for political office can take advantage of the new found political play, expensed for the most part by corporate political money, and prosper!

Certainly, there will be  legitimate concerns expressed about the possible corrosive influence of corporate political money on policy making and the outcomes of elections.

But, good politicians should be ready to hit back if they are attacked by corporations. 

And, shrewd candidates for political office should position themselves to take advantage of corporate political activism.

Public Official Liability v. Corporate Free Speech-Is Liability For Damages In Politics A Concern?

The recent opinion filed by the Supreme Court in Citizens United v. Federal Election Commission certainly raises valid concerns about the influence that corporate dollars may have on campaign finance, campaign finance reform and political campaigns particularly this election year which will be dominated by federal midterm Congressional elections and state gubernatorial races. One commentator argues that the Supreme Court has “[told] corporate giants that they have a constitutional right to trample our democracy.” Robert Weissman, President, Public Citizen, “Citizens United v. FEC:Shed A Tear for Democracy,”  Huffington Post (February 1, 2010). LINK: http://www.huffingtonpost.com/robert-weissman/shed-a-tear-for-democracy_b_432079.html

The Court ruled that under the First Amendment, there is such a thing as a corporate free speech right which allows corporations to freely spend their corporate treasury dollars speaking about and advocating the defeat or election of political candidates. No doubt, the campaign finance and campaign finance reform landscapes have been altered in a dramatic and radical fashion.

But, buried in that decision is a legal issue that could be more troubling than the legal decision about the scope and impact of corporate  free speech in policy making, public affairs, lobbying and politics. It’s whether elected officials and their appointees are now exposed to liability for damages because of actions they take or decisions they make which corporations may disagree with? In other words, will those actions and decisions now be subject not only to scrutiny but also to awards for damages in lawsuits under the First  Amendment?

Lest we forget. the Court long ago held that corporations are persons that have the same civil rights protections as people. Corporations have protected Due Process rights and Equal Protection rights along with the First Amendment rights discussed in the opinion.

So what’s to stop corporations from bringing  massive liability suits against politicians or agency officials who make  executive decisions, take administrative actions, award procurement contracts or initiate any other governmental actions that corporations simply don’t like?

Clearly, corporations are now empowered to spend millions advocating the defeat of the politicians during elections. But, are they also empowered to seek damages against the politicians or their appointees for violations of  their free speech rights or political advocacy for the actions taken or the decisions made which are regarded as being adverse to their  interests?

The potential expansion of liability and the budget busting potential of such liability should be more of a concern than whether corporations will now have an expanded right to spend money speaking about and advocating the defeat or election of politicians.