Election advocacy still driven more by political climate than Supreme Court ruling

Dramatic projections of sweeping upsets are the conventional wisdom for the 2010 mid-term elections.

Dramatic projections of sweeping upsets are the conventional wisdom for the 2010 mid-term elections. Less predictable is the impact on public affairs activity of the recent Supreme Court ruling in the Citizens United case. It seems the ruling creates new opportunities for corporate engagement in political activity, but more experienced hands will tell you much of what the ruling enabled was already achievable under existing law.

The ruling reverses decades of legal precedent that limited direct advocacy for or against a candidate. But the ability to be out front and transparent in their advocacy may not change how corporations and other groups like labor unions plot their political course this fall. Two specific laws still stand: corporations cannot coordinate their activity with a campaign and are still prohibited from contributing directly to a candidate's campaign accounts. But more important, organizations with public affairs concerns have already been active and effective in elections.

For the past two decades, entities with political interests have expanded their campaign participation through the creation of independent coalitions and "527s." These entities operate under a tax structure for non-charitable non- corporations. Any company can already contribute without limit to a like-minded "527." The contributions are not tax deductible, but offer limited anonymity for corporate and individual donors.

Some analysts focused on the fact that the Citizens United ruling eliminates the prohibition of "express advocacy," which employs so-called magic words like "elect," "defeat," "vote for or against." But any communications pro worth their salt can write an ad script to convey that message with different words. The Court also removed the "black-out window" prohibiting mass media for "issue advocacy" within 30 days before a primary or 60 days before a general election. However, independent expenditures tend to be used early on in a campaign anyway, when the goal is to soften up an opponent.

There will be a few pioneers trying their hand at more direct advocacy now allowed, but they should consider two key factors. First is whether the level of transparency of an individual brand endorsing or attacking a specific candidate will tarnish their profile in a way that negatively impacts their original public affairs goal or their business. Second is whether their endorsement will hurt or help the candidate they target.

The highly charged 2010 elections will see increased third-party spending and involvement, but most will be motivated by the dramatic political environment rather than the Court's ruling.

Kiki McLean is partner and global head of public affairs at Porter Novelli.

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