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Q: I work on the re-election campaign of a House Member and I have a question about the fallout of the recent Supreme Court decision lifting restrictions on political spending by corporations. As I understand it, although the decision voided some restrictions on corporations political spending, it left others in place. For example, I know that there are still limitations on the extent to which my campaign can work jointly with corporations on getting out the message for our Member. I want to make sure that our campaign does not do anything that might run afoul of the rules. With respect to corporations, what is now fair game?
A: Good question. In fact, in the wake of the Supreme Courts landmark decision in Citizens United v. FEC, a lot of people are wondering exactly the same thing. What degree of coordination between corporations and campaigns is now permissible?
In the decision, the Supreme Court held that it is unconstitutional for Congress to ban corporations and labor unions from spending money on their own political ads. Specifically, the court struck down a law that had prohibited corporations and unions from expressly advocating the election or defeat of candidates within 30 days of a primary election and 60 days of a general election. For example, the court said, under the law as it existed, it would have been a felony for the Sierra Club to run an ad within 60 days of a general election that urged the public to disapprove of a Congressman who favors logging in national forests. The court said that making this type of speech a felony violated the free speech clause of the First Amendment. Consequently, corporations and unions are now free to spend money on their own political ads.
However, corporations and unions are not free to make contributions directly to candidates campaigns. Citizens United did not change that. This means that your campaign may still not accept money directly from corporations. It also means that your campaign may not accept corporations in-kind contributions, such as supplies, services or anything else of value.
This is significant because one type of in-kind contribution is what is called a coordinated communication. This is essentially where a corporation and a candidates campaign work together on a political ad or communication supporting the candidate. While the court struck down restrictions on independent expenditures by corporations and unions on political ads, it did not alter, at least for now, the ban on coordinated communications. The court reasoned that when corporations make independent expenditures on their own ads, the absence of coordination with a candidate alleviates any danger that the expenditures might be a quid pro quo for improper commitments from the candidate.