Let's be honest, there are some people who are more enthusiastic about the Super Bowl commercials than the outcome of the game. Who can forget the Budweiser commercial with the three adorable frogs sitting on a log croaking "buuud," "wiiise," and "errr"? Often times the commercials are more memorable than the final score. So you might be surprised to learn that a pending U.S. Supreme Court case could change the course of advertising—opening the door to a plethora of political ads. Imagine saying goodbye to the hilarious Doritos ads and witty M&M's commercials, and hello to congressional and presidential campaign spots.
In the past, federal election laws have prohibited unions and corporations from using funds to support political candidates. But the Court has been asked to rethink that position. In Citizens United v. Federal Election Commission the justices will decide the constitutionality of limiting corporations' independent spending during campaigns for the presidency and Congress. Depending on the decision, it's possible that unions and corporations could start pouring loads of money into the advertising arena.
And big businesses certainly have the funds to purchase expensive ads. TNS Media Intelligence reports that a 30-second commercial for the 2010 game is selling for between $2.5 million and $2.8 million. And less than one month away from the game, some commercial spots are still available. "The fear that suddenly we have Super Bowl–style political advertisements is tenable," says Tara Malloy, attorney for The Campaign Legal Center who filed an amicus brief in support of keeping election laws in current form. "Only corporations have trillions of dollars of corporate profits that would make some large-scale ad campaigns possible. This case could knock-down all the rules when it comes to corporate campaign spending."
But critics of the current laws claim that a brash of political ads is on the horizon whether we like it or not. Case in point, last year then presidential candidate Barack Obama purchased local ads during the Super Bowl in 20 states via campaign funds. "Candidates have no problem raising this sort of money and getting their speech on the air, so why can't other advocacy groups have their say?" asks Derek Shaffer, attorney for the National Rifle Association who filed an amicus brief opposing the current law. "The law prevents the little guy from being able to speak alongside the candidates." A number of organizations echo the same sentiment. "By prohibiting certain groups based on their form of organization to speak, you are escorting people from the playing field. I don't think that's a healthy political debate in a campaign," says Allison Hayward, an attorney who filed an amicus brief on behalf of campaign finance scholars who also oppose current election laws.
Some believe it would be political suicide for candidates to run commercials during a popular sporting event when people just aren't interested in the message. "You want to spend money where it's effective. The Super Bowl is a good place for Coke, Pepsi, and Kellogg's cereal to advertise, but it's not the best place for politics," Hayward says. "It would just be bad business judgment."
One thing scholars, advocates and opponents agree on is that no one knows exactly how this case will pan out, especially since most Supreme Court cases are fairly predictable. Citizens United was originally argued before the Court last term, and in a highly unusual twist, the Court asked that the case be reargued, focusing specifically on the larger issue of corporate campaign spending. Sources told NEWSWEEK that an opinion could be handed down as early as next week. And if commercial spots are still available, this could be the dawn of politically charged advertising during one of the most watched television events of the year.