One Expensive Election

November 4, 2010

Several stories have noted that the amount of money spent on this year’s election will easily break the previous record for money spent on a midterm election. Not only are the candidates themselves spending freely, but outside groups have also been pouring money into the election like never before.

One reason for the increase in spending from these groups is likely the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, 130 S.Ct. 876. If you don’t recall, that case dealt with the constitutionality of a federal law prohibiting certain election spending by corporations. Smolla & Nimmer on Freedom of Speech (FREESPEECH § 16:18) describes the Court’s holding as follows:

[T]he Supreme Court of the United States held, by a 5-4 vote, in an opinion delivered by Justice Anthony Kennedy, that federal laws prohibiting corporations and labor unions from using their general treasury funds to make independent expenditures for speech expressly advocating the election or defeat of a candidate violated the First Amendment.

Thus, corporations and other entities are now free to spend money on advertising in support of, or in opposition to, any candidate for office (subject to existing limitations on contributions directly to a candidate or political party). Corporate contributions are often made directly to non-profit corporations, which then put the money to work on campaign advertising and are presently not required to disclose the source of their funding. This situation has prompted one group to seek the appointment of a special prosecutor to investigate the spending of these so-called “shadow groups.”

RESEARCH REFERENCES

To read more on Citizens United’s effect on election spending, try the following searches:

“CITIZENS UNITED” & DA(LAST 30 DAYS) – ALLNEWS

PR,TI(“CITIZENS UNITED”) – TP-ALL

Check out the Federal Election Commission’s website for campaign finance disclosures from candidates, political parties, and political action committees.

President Obama has recently spoken out several times on this issue. His remarks can be found on Westlaw in the PRES-OBAMA database. This database includes several types of documents related to the Obama administration including executive orders, presidential proclamations, signing statements, press releases, and transcripts of press conferences and speeches. A search in PRES-OBAMA for “CITIZENS UNITED” returns a number of documents, many of which are recent speeches given at various locations.

Submitted by
Todd D.
West Reference Attorney