Money in Politics 2009 | Panel Two
Panel Two: Money, Politics, and the Constitution: Is campaign finance reform on a collision course with the Supreme Court?
Our one-day conference, Money in Politics 2009: New Horizons for Reform, at the National Press Club in Washington, D.C., May 8th, 2009, took the first systematic look at what happened in 2008, and its implications for policy, politics and law in 2009 and beyond. It brought together leading experts on campaign finance, preeminent governmental and campaign officials, and advocates to assess new ideas and map out new directions in campaign finance.
Use the sidebar to navigate to other programs in the conference. Click on the videos to begin viewing or read the summary below.
Monica Youn
Rick Hasen | (1/2)
Rick Hasen | (2/2)
Don Simon | (1/2)
Don Simon | (2/2)
Trevor Potter | (1/2)
Trevor Potter | (2/2)
Allison Hayward
Panel Two Q&A
Summary of Panel Two
Following the morning conversations regarding the small donor revolution and the internet's impact on campaign finance regulation, Monica Youn, counsel for the Brennan Center and moderator of the second panel, anchored a discussion of reform in the current legal climate. Ms. Youn began by describing the hostile environment facing campaign finance regulation in the courts and the increase in the number of lawsuits filed by opponents. She concluded her introduction by highlighting two questions at the heart of campaign finance jurisprudence: (1) to what extent should money be considered speech and (2) what interests justify the regulation of campaign finance?
Professor Richard Hasen, professor of law at Loyola University Law School and author of the Election Law blog, opened the panel by likening the Supreme Court's approach to campaign finance reform to a pendulum. Professor Hasen described the Rehnquist Court as a period in which the Court exhibited deference to the government's regulation of campaign finance. By contrast, the Robert's Court pulled this pendulum of deference in the opposite direction by taking a critical and at times hostile, stance towards campaign finance. Indeed, the Robert's Court has struck down every campaign finance regulation it has considered. Professor Hasen characterized the Court's opinions in Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc., Randall v. Sorrell, and Davis v. FEC, as attempts to gut Rehnquist era decisions and fittingly described the decisions of the Robert's Court as an "incremental killing of campaign finance reform." Professor Hasen concluded by suggesting that the Court's next attempt to undercut previous legal victories for the reform community may be to overturn Austin v. Michigan Chamber of Commerce, a Supreme Court opinion expanding the scope of the state's interest in regulating campaign finance.
Practitioners Don Simon, a partner at Sonosky, Chambers, Sachs, Endreson & Perry LLP, and Trevor Potter, general counsel for the Campaign Legal Center, discussed the status of cases currently before the courts, including Citizens United v. FEC and RNC v. FEC, and the impact that the Robert's Court may have upon them. Mr. Simon began with a presentation of Citizens United, a case currently before the Supreme Court. At issue in Citizens Untied is the scope of BCRA's funding restriction and whether it applies to a 90-minute documentary distributed via pay per view. Mr. Potter commented that although Plaintiffs significantly expanded the scope of their challenge when the case moved up to the Supreme Court, the Court had an opportunity to narrowly decide this case by holding that the advertisement at issue does not fall within the scope of BCRA.
Mr. Potter also weighed in on Republican National Committee (RNC) v. FEC, a challenge to BCRA's soft money ban currently in front of a three judge panel in federal district court. Mr. Potter noted that the Supreme Court's prior ruling in McConnell v. FEC upholding BCRA's soft money ban was decided on razor thin margins, with Justice O'Connor as the deciding vote. In light of Justice O'Connor's departure from the bench and a more hostile Court, the RNC Plaintiffs are now attempting to take another bite of the apple by essentially re-litigating McConnell.
Lastly, Professor Allison Hayward of George Mason University School of Law argued that the scope of current campaign finance regulation raises serious constitutional issues and urged the reform community to reassess the objectives that they hope to achieve with campaign finance regulation. Professor Hayward questioned the soundness of regulations that place greater restrictions on group activity then on individual activity. Citing the example of contribution limits to political action committees (PACs), Professor Hayward stated that issues regarding the right to associate arise when a state permits an individual to make unlimited expenditures on an issue individually but places a limit on how much that person can contribute to a PAC. Since organizations are but a group of several individuals, Professor Hayward contends, there should be no difference between regulating an individual and regulating an organization of individuals. Professor Hayward also questioned whether incumbency, and not the amount of money spent in politics, should be the real problem that campaign finance reform should resolve.
Ms. Youn opened up the question-and-answer portion of the second panel by asking whether the Supreme Court might consider some of campaign finance reform interests advanced by speakers earlier in the day, such as trust in government or "supercharging" small donors. Mr. Potter responded by emphasizing that underneath these issues lies the question of "whose democracy is this anyway?" He further pointed out that a fundamental question remains about whether or not there should be corporate money in elections.
Acting as a self-proclaimed "pessimist," Professor Hasen doubted whether the Court would be inclined to treat any of the additional interests cited by Ms. Youn as more palatable than those that have already been considered by the Court. Any change in the interests accepted by the Court, argued Professor Hasen, would be accompanied by a change in personnel on the Court. Mr. Simon agreed with Professor Hasen that, in the short term, the Roberts Court is skeptical of campaign finance reform, but conceded that a future Court may well be open to broader interests. Professor Hayward suggested that the Supreme Court's skepticism may actually be a reason to be optimistic; why should Congress have the latitude to write the rules by which they are elected, especially if they only serve to protect incumbents?