At some point next year, the U.S. Supreme Court is likely to face a major First Amendment question: whether to overturn what remains of the 2002 McCain-Feingold Act. This measure prohibited political parties from raising “soft money”—unlimited funds that wealthy individuals, corporations, and labor unions could give to parties, thanks to a loophole in the post-Watergate campaign-finance laws. Such a ruling would allow political parties once again to take millions of additional dollars from donors who, as the Supreme Court found in 2003, use soft money to ingratiate themselves to election officials and secure access to them. How the Court rules is likely to determine whether the wealthiest donors will have an easier path to secure that access—and whether the rest of the country will suffer as a result. A special three-judge federal district court has been convened in Washington, D.C., to consider the law in light of recent campaign-finance rulings by higher courts. The suit, brought by the Republican Party of Louisiana, is being litigated by Jim Bopp, the attorney who successfully navigated Citizens United and other related cases to the Supreme Court. A key argument in the suit is that cases like Citizens United have called into question the constitutionality of the “soft-money” ban. Chief Justice John Roberts, in the 2014 McCutcheon case, seemed to invite such a challenge, raising the possibility that money given to strengthen parties deserves special First Amendment protection.
Did the congressional drafters of the 2002 McCain-Feingold campaign-finance law build within it the seeds for its own destruction? Tucked within the Bipartisan Campaign Reform Act (the formal name for “McCain-Feingold”) is a provision requiring that certain constitutional challenges to the law be heard by a three-judge court, with direct appeal to the U.S. Supreme Court. This special jurisdictional provision makes it much more likely that within the next few years the Supreme Court will strike limits on the amounts people and entities can contribute to the political parties in so-called party soft money. If the court does so, it would be knocking down the second of McCain-Feingold’s two pillars. The court knocked down the first pillar—the limits on corporate and union spending—in the 2010 case Citizens United v. Federal Election Commission.
National: Party fundraising provision, crafted in secret, could shift money flow in politics | The Washington Post
A massive expansion of party fundraising slipped into a congressional budget deal this week would fundamentally alter how money flows into political campaigns, providing parties with new muscle to try to wrest power back from independent groups. The provision — one of the most significant changes to the campaign finance system since the landmark McCain-Feingold measure — was written behind closed doors with no public debate. Instead, it surfaced at the last minute in the final pages of a 1,603-page spending bill, which Congress is rushing to pass to keep government operations from shutting down. Under the language in the bill, a couple could give as much as $3.1 million to a party’s various national committees in one election cycle — more than triple the current limit.
Despite backlash from Democrats, good government groups think the language in the year-end spending bill that alters campaign finance law benefits both parties’ pocketbooks too much for it to be carved out. The watchdogs were among the first to criticize provisions buried deep in the “cromnibus” released Tuesday night that would dramatically ease spending limits on individual contributions to national political party committees. House Minority Leader Nancy Pelosi followed suit. The California Democrat said she learned about the provisions only one day before the carefully negotiated agreement was released. Pelosi, one of the top fundraisers for the Democratic Congressional Campaign Committee, announced she’s “deeply troubled” by how that part of the package would increase by tenfold the amount of money wealthy individuals can contribute. Reps. Chris Van Hollen of Maryland and Steve Israel of New York, former chairmen of the DCCC, joined in the criticism of the legislation that would allow a single individual to contribute to each national party’s three committees a total of $1.5 million per two-year election cycle.
Editorials: Federal Judge Strikes a Blow Against Dark Money — But Will It Hold? | Daniel I. Weiner/Brennan Center for Justice
On Tuesday, Judge Amy Berman Jackson of the federal district court in Washington, D.C. handed transparency advocates a victory, when she (again) struck down a deeply flawed Federal Election Commission (FEC) rule that has helped to fuel the explosion of “dark money” — political spending from unknown sources — in U.S. elections. Judge Jackson has the law and common sense on her side, but the ultimate impact of her ruling remains to be seen. The rule at issue governs “electioneering communications” (ECs) — broadcast, cable or satellite communications referring to a clearly identified federal candidate during the run-up to an election. Such ads do not explicitly advocate a candidate’s election or defeat, but the vast majority plainly are election-related. Voters deserve to know who is paying for this advocacy, and what they want from the government. Praise for a candidate from your regional chamber of commerce, for instance, merits different scrutiny than praise from a big oil company in another state. Criticism from a local veteran’s group is not the same as criticism from a faraway defense contractor.
The Republican National Committee filed a lawsuit against the Federal Election Commission on Friday seeking the ability to raise unlimited donations from individuals, the latest attempt by the GOP to reverse a seminal 2002 campaign finance overhaul. In its suit, the party committee argues that it has a First Amendment right to raise the kind of massive contributions that now fuel super PACs and other independent groups. Currently, individuals can only give $32,400 a year to party committees. Overturning that limit would knock out a major plank of the McCain-Feingold Act, which banned parties from accepting soft money. “I believe it is my job as the leader of the Republican Party to do everything in my power to help our candidates and get out our message of economic growth and opportunity,” RNC Chairman Reince Priebus said in a statement. “The patchwork of limits on political speech undermines the First Amendment and puts high transparency, full-disclosure groups like the RNC on an unequal footing with other political entities. We are asking that political parties be treated equally under the law.”
Members of the Republican National Committee gathering in Memphis, Tennessee, for their spring meeting are set to join a lawsuit seeking to strike down campaign finance limits and free the GOP to spend unlimited money on get-out-the-vote efforts. Republicans have long argued that “soft money” spending limits imposed on political parties by the Federal Election Commission in the aftermath of the 2002 McCain-Feingold law have punished the RNC and state political parties while letting pro-Democrat unions spend unlimited money to organize voters. The lawsuit specifically will ask the courts to allow national and state parties to form super PACs that can raise and spend unlimited amounts on election efforts, something the FEC has prohibited. “We think this will put the final nail in the coffin of the McCain-Feingold law,” Louisiana Republican Party Chairman Roger Villere said in an interview.
Voting Blogs: Fundraising and Corruption in the Arguments about McCutcheon | More Soft Money Hard Law
Public Citizen attempts to make the case that the Supreme Court’s pending decision inMcCutcheon could, if wrongly decided, unleash a flood of money with the probable effect of corrupting the political process. The argument is the one heard before in briefs and in oral argument about joint fundraising committees. A donor who gives to a joint fundraising committee can write a check for millions, to be apportioned within the limits among all the joint fundraising participants. Public Citizen warns against “naïveté”: the more “practical” view it urges is that the officeholder who solicits for the joint fundraising committee risks corruptive indebtedness to the donor. This is a plausible policy argument, but not clearly one best directed to the Supreme Court or sufficient to carry the constitutional position Public Citizen is advocating. Public Citizen is relying on a hypothetical (which is another way of saying that no record exists to suggest that it is realistic) and on a particular understanding of corruption and fundraising that does not capture the complexities of Congress’ treatment of the issue in reform measures over the years.
The Federal Election Commission has unquestionably had its full share of troubles. And on the agency’s role and performance—about which there is unceasing disagreement—certain points deserve general acceptance: that the FEC’s computers should not be hacked, its Commissioners should not act spitefully toward one another, and it should be provided a reasonable amount of money with which to carry out its functions. Dave Levinthal of the Center for Public Integrity makes just these points, among others, and so far so good; but then he presents a dubious history of the FEC that will confuse readers about the sources of its problems and the reasons why “reform” of the agency is elusive. Has the FEC, rent apart by ideological differences, engaged in unseemly squabbling in recent years? It is fair to say so, and it is good to hear freshly confirmed Commissioner Goodman suggest that there is no reason for Commissioners to be disagreeable in their expression of otherwise sincerely held differences of opinion. But the Levinthal piece goes farther and re-writes the history of the agency to suggest that in the 1990s the agency was doing its job and transcending partisanship among its Commissioners, only to fall to earth and into disrepute in the following decade. A “golden age,” one is led to believe: “during the 1990s…the FEC’s stature soared,” and while Republican and Democratic Commissioners “certainly disagreed from time to time…they could find enough commonality to cobble four votes together and take action.”
Editorials: Citizens United, McCain-Feingold Fueled Congress’ Shutdown Politics | Paul Blumenthal/Huffington Post
Dysfunctional politics led a coalition of independent conservative groups and hardline Republican lawmakers to push for a showdown on Obamacare over a continuing resolution to fund the government and thus to shut down the government for more than two weeks. But what empowered a fracturing Republican Party to bring chaos on Washington? The short answer: a one-two punch rewriting of campaign finance law that drove legislators to heed their own parties’ extreme elements. Former Speaker Dennis Hastert (R-Ill.) has blamed the 2002 McCain-Feingold reform law, calling it “the worst thing that ever happened to Congress.” By taking unlimited “soft money” away from the political parties, but especially from the Republican Party, the law empowered the nascent insurgents at the Club for Growth. President Barack Obama said it was the Supreme Court’s 2010 Citizens United decision that “contributed to some of the problems we’re having in Washington right now.” Post-Citizens United, money from independent groups has poured into elections.
Jeffrey Toobin is up with a piece today, “Another Citizens United – But Worse,” about the Supreme Court’s next money in politics case. In McCutcheon v. FEC, slated for oral argument in October, appellants challenge contribution limits on the total amount of money one individual can transfer in direct contributions. If the Supreme Court strikes these aggregate contribution limits, a person now limited to making $123,200 in direct contributions could make—and be solicited for—as much as $3.5 million in contributions directly to candidates, parties, and committees. Contribution limits are one of the last bastions of campaign finance law regularly upheld by courts, along with disclosure requirements, even after the floodgates on independent expenditures were opened in Citizens United. So it is no wonder they are under assault from those who advocate a Wild West of campaign spending, lacking common sense rules to prevent the capture of democratic government by concentrated economic power. Toobin paints a dreary picture of the prospects for the case, encapsulated in a quote from the lower court that upheld the contribution limits but raised the “possibility that Citizens United undermined the entire contribution limits scheme.” But he is wrong that Citizens United itself “said nothing about direct contributions to the candidates themselves.” In fact, Kennedy’s opinion reiterates the legitimate need for contribution limits to fight the reality and appearance of corruption.
Republicans in the U.S. Senate voted unanimously Monday and again on Tuesday to block adoption of the Disclose Act, Democratic Senator Sheldon Whitehouse’s legislation to require disclosure of political donations of more than $10,000 within 24 hours of the money being spent. The votes were no less remarkable for having been predictable. For years, congressional Republicans had vowed that disclosure of donations and spending was the one sure route to an honest campaign-finance system. Senate Republican leader Mitch McConnell, the field general who for two decades has organized the party’s attacks on campaign-finance regulation, including the McCain-Feingold reforms, once spoke eloquently of the sanctity of the First Amendment and of the merits of disclosure. What’s more, because McConnell in the 1990s had also come around to opposing constitutional amendments against flag burning, he had credibility as a First Amendment champion.
Editorials: The Money Crisis – How Citizens United Undermines Our Elections and the Supreme Court | Russ Feingold/Stanford Law Review
As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds. Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy. For years, our political process was governed by an underlying principle: large organizations, primarily corporations, were not allowed to buy their way into elections. For 100 years, our laws reflected this principle. First, Congress passed the Tillman Act in 1907, which prohibited corporations from using their treasuries to influence federal elections.Signed by President Theodore Roosevelt, the legislation recognized what had become abundantly clear: corporate influence corrupts elections. Later, under the Taft-Hartley Act of 1947, Congress extended the same prohibition to labor unions. For generations, these regulations provided the bedrock of our election law that followed, including the landmark Bipartisan Campaign Reform Act passed in 2003. And for several election cycles, between 2004 and 2008, our system seemed headed towards more fair and transparent elections. But Citizens United changed everything.
Editorials: When Did Conservatives Change Their Mind About Campaign Finance Disclosure? | Mark Schmitt/The New Republic
A decade ago, when Congress was debating the Bipartisan Campaign Reform Act, better known as McCain-Feingold, the conservative alternative to its modest tightening of regulations on political spending bore the wonderful name DeLay-Doolittle. The name represented not just the two primary sponsors—then-Reps. Tom DeLay and John Doolittle—but also what the bill would do, or not. As an alternative to restrictions on soft money and corporate spending, DeLay and Doolittle proposed to lift all existing regulations on political contributions, and replace them with a regime of immediate and complete disclosure on the Internet. DeLay and Doolittle faced two problems, however. First, its supporters soon disappeared from Congress under murky circumstances. DeLay was indicted on campaign-finance related charges in 2006 and resigned. Doolittle, deeply implicated in the Jack Abramoff scandal, left Congress in 2007. The third major supporter of the bill, Rep. Bob Ney, served 17 months in prison connected to the Jack Abramoff scandal. The second problem with DeLay and Doolittle was that its supporters didn’t mean a word of it. They didn’t want to disclose their donors and outside backers any more than they wanted to limit them—after all, they went to great lengths to hide information such as their dealings with Abramoff. It was only a slick way of changing the subject.
Editorials: Money Unlimited: How John Roberts Orchestrated Citizens United | Jeffrey Toobin/The New Yorker
When Citizens United v. Federal Election Commission was first argued before the Supreme Court, on March 24, 2009, it seemed like a case of modest importance. The issue before the Justices was a narrow one. The McCain-Feingold campaign-finance law prohibited corporations from running television commercials for or against Presidential candidates for thirty days before primaries. During that period, Citizens United, a nonprofit corporation, had wanted to run a documentary, as a cable video on demand, called “Hillary: The Movie,” which was critical of Hillary Clinton. The F.E.C. had prohibited the broadcast under McCain-Feingold, and Citizens United had challenged the decision. There did not seem to be a lot riding on the outcome. After all, how many nonprofits wanted to run documentaries about Presidential candidates, using relatively obscure technologies, just before elections? Chief Justice John G. Roberts, Jr., summoned Theodore B. Olson, the lawyer for Citizens United, to the podium. Roberts’s voice bears a flat-vowelled trace of his origins, in Indiana. Unlike his predecessor, William Rehnquist, Roberts rarely shows irritation or frustration on the bench. A well-mannered Midwesterner, he invariably lets one of his colleagues ask the first questions.
National: FEC Disclosure Loophole Closes On Secret Donors As Court Won’t Stay Ruling | Huffington Post
A court rulingrequiring non-disclosing political groups — including the U.S. Chamber of Commerce and the Koch brothers’ Americans for Prosperity — to disclose their donors is one step closer to going into effect after a district court refused to stay its ruling in the face of an appeal. On March 30, a district court ruled in Van Hollen v. Federal Election Commission (FEC) that a loophole in FEC rules that allowed certain independent group campaign efforts to keep private the names of donors was invalid and needed to be rewritten or reset to the original language. On Friday, the court not only refused to stay the ruling, as requested by two intervening groups that are appealing the case, the Center for Individual Freedom and the Hispanic Leadership Fund, but the court also found that its ruling invalidated the FEC loophole, which required it to be immediately closed, resetting to the original language in the McCain-Feingold campaign reform law, known officially as the Bi-Partisan Campaign Reform Act (BCRA).
Citizens United and super PACs have had an ugly effect on this election, but they may be the evil of two lessers. Big money is having a powerfully different effect on this year’s national election campaign. We’ve seen it in the extraordinary oscillations of the Republican primaries, largely brought about by millions of dollars of television attack ads, financed not by the opposing campaigns so much as by groups outside the parties that can say whatever they want without the candidates or the parties being called to account. These are the super PACs, political action committees on steroids. Their muscle–and some think their menace–comes from two federal court rulings in 2010, notably the Supreme Court’s decision in Citizens United,that allow them to raise as much as they can from anyone and spend as much as they like, provided–and it was regarded as a key proviso–that they are independent. For a super PAC to make contributions directly to parties or candidates, or do anything in collusion with candidates, is illegal.
A court ruling rejecting Federal Election Commission disclosure requirements as too lax has left political players unsure how much they need to report about the financing of issue ads, making the agency a battleground in the dispute over secret money in 2012. The March 30 ruling by U.S. District Court Judge Amy Berman Jackson orders the FEC to rewrite disclosure rules drafted after enactment of the 2002 McCain-Feingold campaign finance law that the court deemed inadequate. Few expect the six-member agency to comply promptly with the order. Divided evenly between Republicans and Democrats, the FEC is notorious for partisan deadlocks. It hasn’t yet mustered a quorum to weigh new regulations arising from the Supreme Court’s 2010 ruling in Citizens United v. FEC, though it did say it would no longer enforce restrictions that kept labor unions and corporations from making political expenditures.
National: Koch Brothers, Chamber of Commerce Face Possible Campaign Donation Disclosure After Ruling | Huffington Post
On Friday evening, the U.S. District Court for the District of Columbia issued a ruling that could begin the process of revealing the identities of secret donors to groups connected to Karl Rove and the Koch brothers. The court ruled in Van Hollen v. Federal Election Commission that the FEC rules that restricted campaign donor disclosureare not valid and must be changed to provide for disclosure. “We are very happy to see the judge got it right,” says Paul Ryan, a lawyer for the Campaign Legal Center, a campaign finance watchdog that was a part of the team challenging the FEC rules. Those rules state that donors to groups spending money on “electioneering communications,” or advertisements that do not specifically call to elect or defeat a candidate, must only be disclosed if they specifically earmarked their donation to that particular expenditure. Since few, if any, donors to these groups ever earmark their donation for a specific election expense there was no disclosure.
Ten years after they celebrated the enactment of their sweeping ban on unregulated campaign cash, Sen. John McCain (R-Ariz.) and former Sen. Russ Feingold (D-Wis.) have revived their assault on big money.
The two are not plotting some grand new reform or launching a public relations tour — though they did tape a public radio segment together recently. But a decade after the McCain-Feingold law was signed by the president (March 27, 2002), the erstwhile allies are delivering a strikingly unified message: The campaign finance rules are in tatters, scandals will follow, and voters will once again demand reform. “Thanks to a naive and politically ignorant decision by the United States Supreme Court, obviously it has been largely dismantled,” McCain said in an interview about the law that he authored with Feingold. “And the consequences are manifesting themselves every day in what will someday be, sooner rather than later, a huge scandal.”
Feingold struck a similar note. “We put a brick on top of a wall, and the brick is intact, but the wall was smashed by the Citizens United decision,” Feingold told Roll Call. “It has turned the election system into a joke.”
This week marks the two-year anniversary of the Supreme Court’s ruling in the case of Citizens United v. Federal Election Commission, which struck down part of the 2002 McCain-Feingold election law. Never has the ruling been as salient as it is now in the national political discussion. The Occupy movement has taken aim at the decision, blaming it for allowing the “1 percent” to exercise unprecedented control over the political process. Meanwhile, the decision has been widely cited as paving the road for the super PACs that are dominating the Republican primary, now evenoutspending candidates’ official campaigns in South Carolina. All of which contributed to my interest in a letter sent to the New York Times this week by Floyd Abrams, a longtime First Amendment lawyer who represented Sen. Mitch McConnell in the Citizens United case and argued that part of the McCain-Feingold law was unconstitutional. Abrams has been involved in many landmark cases, notably representing the Times in the Pentagon Papers case in the early 1970s.
The Securities and Exchange Commission is being flooded with support for a proposed regulation that would undo at least some of the effects of the U.S. Supreme Court ruling in Citizens United vs. Federal Election Commission — which opened the floodgates to often secret corporate political contributions that threaten to swamp American elections.
The proposed SEC regulation requested by a committee of professors on corporate law would require “public companies to disclose to shareholders the use of corporate resources for political activities.” In other words, even if corporate executives now earmarking company money for political candidates and parties would not have to reveal the recipients to the public or the media, they would have to disclose the amounts and recipients to stockholders. The SEC has been considering the rule since it was proposed in August.
National: Obama Campaign General Counsel Criticizes ‘Anti-Reform’ Movement in Election Politics | Virginia Law
Robert Bauer, general counsel to President Barack Obama’s re-election campaign and a former White House counsel, said Monday that an anti-reform movement has been dismantling rules that aim to protect confidence and integrity in government.
“I’m very troubled that there is an extremism in the opposition to reform, a sort of reckless and doctrinaire quality that is going to go a long, long way if it is taken to its logical conclusion to further undermine the fragile and critical trust the people have in their government and in the quality and effectiveness of self-governing,” said Bauer, speaking in Caplin Pavilion at the University of Virginia School of Law.
For roughly three decades after the Watergate scandal, Bauer said, there generally was bipartisan support for political reforms. Yet that support has frayed in recent years, particularly since the enactment of the McCain-Feingold campaign finance reform law in 2002 that limited soft-money contributions by corporations and unions.