After the Supreme Court’s 2010 decision in Citizens United, much of the debate focused upon how the ruling would open the door for more corporate and union political activity. While no significant for profit corporate activity arose during the 2010 election cycle, there was an increase in political activity by corporate non-profits (and of course unions). However, as Politico recently reported, the broader impact of Citizens United may prove to be on the permanency of the campaign process, not just on heightened participation during election season. The phrase “permanent campaign” has been in our political lexicon for some time, but the concept has unquestionably now taken root, with political activity seamlessly continuing from one election cycle to the next:
Just one month after the 2010 midterms, the conservative Crossroads GPS launched $400,000 in radio ads pushing Democrats to extend the Bush tax cuts. The group spent another $450,000 last month in key House districts, plus $750,000 more in recent ads about the Wisconsin labor fight.
The Susan B. Anthony List, American Future Fund and Americans for Prosperity also are putting up ads, sending mailers and financing election-style bus tours — all feeding into a non-stop, two-year campaign against the Democrats heading into 2012.
It is important to remember that Citizens United was a campaign finance decision – not a tax law decision. As Politico went on to discuss, the aforementioned groups are “essentially charities’ requiring them “to prove to the IRS that they deserve that special, non-political status, and the perks that go along with it.” Although the FEC is in the process of finalizing its post-Citizens United rule making, the IRS has been fairly circumspect. The landscape, therefore, remains ambiguous. With this permanent campaign will come the need for permanent — and more rigorous — compliance. Non-profit corporations engaging in political activity by in particular must therefore understand the legal and regulatory restrictions that continue to evolve in the post-Citizens United world.