Bill Maher’s announcement that he will use his HBO show to try to defeat a House incumbent will soon become Exhibit A for those defending the Supreme Court’s controversial Citizens United decision. Why?
Because the restrictions on corporate election spending in the McCain-Feingold law specifically exempted “media” corporations. To critics of the law, this special treatment of media corporations (leaving aside all the difficulties of how to define the media in the digital age) was always one of the reasons the restrictions on other corporate election spending should be considered unconstitutional. The Supreme Court majority specifically pointed out this different treatment of different corporate entities in the law.
Bill Maher’s show reportedly reaches 1.2 million viewers an episode, according to this link I quickly found. If the corporate resources of HBO can be used to try to defeat a particular House candidate, the defenders of Citizens United will argue, why should other corporations not be able to engage in the same activity to reach comparable sized audiences? The story suggests Maher is most likely to go after a sitting Republican, and that will fuel this defense of Citizens United all the more. To many Republicans who view the media as tilted to the liberal side, there was always a partisan cast to permitting unlimited electioneering spending from media corporations while regulating that of other corporations. If this Bill Maher project takes off, I suspect his name will now come up in most debates about Citizens United: if HBO and Bill Maher can try to defeat House candidates, why shouldn’t other corporations be able to do the same?
For a critical analysis from the perspective of constitutional law of McCain-Feingold’s different treatment of media and non-media corporations, see this important article in the Yale Law Journal by Michael McConnell.