Even as Supreme Court nominee Sonia Sotomayor's campaign finance credentials
are brought to light, reform-minded court-watchers are on pins and
needles as to what the next big Roberts' Court decision in that area
will be. The Supreme Court is poised to decide this week a critical
case for the future of campaign finance reform efforts.
The case, called Citizens United v. Federal Election Commission,
is a challenge to part of the 2002 Bipartisan Campaign Reform Act
(popularly known as "McCain-Feingold") - the ban on corporate spending
on broadcast campaign ads
- asking whether it also prohibits the spending of corporate dollars on
a 90-minute on-demand broadcast of "Hillary: The Movie." As its name
implies, the documentary film was originally intended to torpedo
"Hillary: The Presidential Candidate" at a time when she was the top
contender in the Democratic primary.
At least one member of the three-judge lower court reportedly
snickered aloud at oral argument when asked to consider that the movie,
which features the likes of Ann Coulter and portrays Clinton as
"steeped in sleaze," was not an assault on her qualifications for
office. In the most recent case considered by the Supreme Court on
campaign finance, Wisconsin Right to Life II,
the court concluded that an ad that questions the qualifications or
character of a candidate for federal office was rightly subject to the
ban.
Yet March's oral argument in the Supreme Court was humorless. Many
reformers grew deeply worried about where the court was headed after
the Deputy Solicitor General Malcolm Stewart took up its invitation to
speculate about whether a similar ban could reach books downloaded on
Kindle or other, non-broadcast media.
The "what-ifs" posed by the Supreme Court utterly disregarded the
specific terms of the reform, the 2002 so-called "McCain-Feingold" law,
which extended only to "broadcast advertisements." Although its 2003
opinion did not rule out other regulations, the decision to uphold the
law focused on the problem at hand: corporate spending on television
ads that overwhelmed the airwaves during election season.
In that decision not too long ago, the Rehnquist-led Court
acknowledged congressional concern over the "corrosive and distorting
effects of immense aggregations of wealth ... [on expenditures that]
have little or no correlation to the public's support for the
corporation's political ideas." The court also noted that the
provisions were justified to stop the circumvention of other limits on
corporate spending on elections, which has been generally prohibited in
federal races since 1907.
Fast-forward six years and it is now another day, another dollar in the Supreme Court. The Citizens United oral
argument was full of flights of fancy about entire categories of speech
no one had actually imagined were at issue, including books.
But the court's parade of horribles did not instruct so much as
obscure the questions before it. While the Justices could simply have
asked whether the term "advertisement" applies to a full-length movie,
or whether "on-demand" communications are distinct in nature from
general broadcasts (they might be), the court instead showed a
dangerous, and not very "umpire-like," tendency to look past the terms of the statute to the great unknown.
If the First Amendment or any other constitutional provision is
considered in the abstract, untethered from its concrete and specific
goals, then any mere law - including McCain Feingold - has little
chance of measuring up. Indeed, the version of First Amendment
absolutism that this court appears to practice, and may apply here, is
in stark contrast to the sober assessment of practicalities, and
balancing of competing goals, that every prior court since Buckley
used to evaluate campaign finance rules. But freelancing - even when it
comes to questions regarding the reach of the First Amendment - is
hardly what we expect of our courts.
The question of how to adapt statutes written for a previous age to
fit new technologies - i.e., whether there is any conceivable
corruption interest in books purchased and downloaded to a Kindle - is
not a question best first addressed in a courtroom at oral argument,
but by a legislature or regulatory body charged with solving a specific
harm, and proposing a particular plan to address it.
It is obviously the case that major adaptations in campaign finance
law - as in many other areas - will follow in the wake of tectonic
shifts in how we share and process information. And it is likely that
new rules will need to be evolved to grapple with corruption concerns,
where they do persist.
Persist they will, because where there is power, there will be those
who try to corrupt it. Recent scandals, such as those in the rotten
mortgage bond market or the attempts to sell a U.S. Senate seat in
Illinois, show that addressing both actual and possible political
corruption remains a pressing concern for the health of our democracy.
Web-based tools mean that it will be easier and simpler than ever
before to report and track information about contributions and other
campaign spending, which may actually shift the balance in favor of
regulation. The real issue is not whether one may draw lines around
protected and prohibited categories of communication, but who
is best suited to develop and draw those lines. Should it be Congress
and the Federal Election Commission? Or should it be the court?
The mere existence of novel media does not somehow render obsolete
the concern, dating back to the Constitutional Convention, of how to
balance the access of special interests to public institutions and
officials to make them less prone to corruption, capture and other
delegitimizing influences. Thoughtful campaign finance rules demand a
reconciliation of First Amendment protections with the equally serious
need to check political corruption and the appearance of such
corruption.
This court, as well as any future composition of it, would do well
to decide cases in the campaign finance area carefully, based on the
statute before it and the weight of precedent. We hope that this week,
and in the future, it will allow the other branches of government to
adapt this part of the law to changing circumstances, rather than
allowing the shadow-boxing possible in oral argument to gain substance
in constitutional precedent.
In a post on The Hill Blog, The
Incumbency Problem Has Everything to do with Money, I wrote that the
availability of low contribution limits and public financing help challengers
in elections against incumbents. Professor
Hayward replied here, and was
somewhat dismissive of the Brennan
Center research inspired
by Randall v. Sorrell that proves
these points.
After paraphrasing Prof. Hayward's statements at our
recent conference for the blog, I checked the transcript. Here's what Prof. Hayward said, "So ask
yourselves, and this is my closing thought: as passionate reformers, how much
of what you dislike about political funding is a problem of incumbency rather
than a problem of money?" Given this, I
do not think it was misleading to write: "panelist Professor Allison Hayward, a
skeptic of campaign finance reform, asked whether reformers should really focus
more on incumbency than they do on limits on money in politics."
The banking industry, recently described by Senator Dick Durbin (D-IL) as the “most powerful lobby on Capitol Hill,” has maintained its hold over Congress even after causing the current financial meltdown. While discussing the mortgage crisis on Bill Moyers’ Journal on May 8, Senator Durbin, co-sponsor of the Fair Elections Now Act (FENA), stated that the “way we finance our campaigns” lies at the heart of the current crisis. His solution is FENA, a bill that will provide public financing to congressional candidates.
By giving congressional candidates the option to run their campaigns with money free of any strings attached, FENA ensures that politicians will not make legislative decisions out of a sense of indebtedness to large contributors but will vote their conscience. Senator Durbin declared that now is the “time for us to move to public financing, for the good of the country,” and it certainly seems that the potent combination of economic collapse and political challenges means that there is no time like the present to fully consider how to change business as usual in Washington.
At a press event on Monday May 11, Representative Larson (D-CT), co-sponsor of the House version of FENA, stated that due to the bill’s importance, he hopes to push the bill through the House before the end of the summer. The House version of FENA, co-sponsored by Rep. Larson (D-CT) and Rep. Walter Jones (R-NC), now has 31 co-sponsors.
A widely attended conference convened by the Brennan Center for Justice brought together academics, activists, politicians, Obama Administration officials and even an actor in a packed hall at the National Press Club in Washington, D.C., on May 8th (click here to learn more about the conference).
It might not surprise you to hear that the Supreme Court occasionally gets it wrong on the facts. Sometimes, it just takes a while to prove it.
The Roberts Court's first foray into campaign finance law was three years ago, in a case called Randall v. Sorrell. The court's decision overturned Vermont's very low contribution limits, which ranged from $200 to $400. The court assumed that low contributions limits ($500 or less) would prevent challengers from mounting an effective campaign against an incumbent.
A day-long conference, "Money in Politics 2009: Horizons for Reform," convened by the Brennan Center [click here to see agenda, and follow on twitter: #bccfr], will take place today, May 8th, at the National Press Club in Washington, DC. The focus is on innovations that address the nexus between money and politics. One such proposal is the Fair Elections Now Act ("FENA"). The Act would build on successes in the states with systems of voluntary public funding of elections.
Embracing their role as "laboratories for democracy," three states, Arizona, Connecticut and Maine, enacted voluntary public funding programs for legislative and statewide elections following well-publicized scandals to reduce the power of well-heeled special interests and to enhance the participation of ordinary citizens as both candidates and voters in the political process.
The Washington Postreported recently that top TARP recipients paid a collective $22 million dollars to lobby Congress over the previous six months. In a recent interview, Assistant Majority Leader, Senator Dick Durbin observed wryly that, "the banks—hard to believe in a time when we're facing a banking crisis that many of the banks created—are still the most powerful lobby on Capitol Hill. And they frankly own the place."
Getting out of the financial crisis will take disciplined regulation of the financial industry. If Senator Durbin, who is number two in the Senate and who has worked on the bailout as well as consumer credit and related issues, is not able to gain traction to resolve the crisis, improving transparency of political spending by TARP recipients, as we called for in a letter to TARP overseer Elizabeth Warren several weeks ago, is a crucial next step.
Last week, Congress took a major step forward with the introduction of the Fair Elections Now Act (FENA). Senators Durbin (D-IL) and Specter (R-PA) led the charge in the Senate, while Representatives Jones (R-NC) and Larson (D-CT) introduced the House bill. The bills’ formal introductions triggered a flow of bi-partisan support from members of both chambers. Some members of Congress reflected on the positive experience in their home states with voluntary public funding programs. Video of the introductory events can be viewed here.
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