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Saturday, March 19, 2011

To Right, Citizens United Just a Start


by Kenneth P. Vogel

Not satisfied by the 2010 Supreme Court ruling that opened the floodgates to corporate-sponsored election ads, conservative opponents of campaign finance regulations have opened up a series of new legal fronts in their effort to eliminate the remaining laws restricting the flow of money into politics.

Lawyer Jim Bopp is working on what could be the next big campaign finance case. (AP Photo) They have taken to Congress, state legislatures and the lower courts to target almost every type of regulation on the books: disclosure requirements, bans on foreign and corporate contributions and – in a pair of cases the Supreme Court will consider this month – party spending limits and public financing of campaigns.

The sustained assault, combined with the Supreme Court’s rightward tilt on the issue, has some advocates for reducing the role of money in politics fretting about the possibility of an irreversible shift in the way campaigns are regulated and funded that would favor Republicans and corporate interests in the 2012 presidential race and beyond.

“We’ve already passed the danger point, and if you put all (the challenges) together, we could lose almost all of what we’ve had historically as campaign finance reform,” said Craig Holman, a lobbyist for the non-profit group Public Citizen, which pushes to protect or expand campaign restrictions in Congress, at the Federal Election Commission and in the courts.

“These types of lawsuits against campaign finance measures have been flooding the courts for years,” said Holman, “but now they’re finding more success with these five justices on the Supreme Court taking very anti-campaign finance reform stands – or, more appropriately, pro-corporate stances – and so the cases are reaching further than they ever did before.”

Case in point was the court’s sweeping 5-4 decision in January 2010 in Citizens United vs. FEC, which allowed corporations and unions to fund independent election ads, overturning decades of law and demonstrating the court’s tendency to view campaign cash restrictions as infringements on free speech.

The decision sparked an explosion of attack ads – many anonymously funded – that targeted Democrats and boosted Republicans in the 2010 midterm elections. It also fueled a push by congressional Democrats to tighten disclosure rules, which has yet to gain traction, as well as a partially successful effort to sway the American Civil Liberties Union, one of the few left-leaning groups to support Citizens United and other challenges to campaign restrictions.

But, perhaps more significantly, Citizens United emboldened increasingly well-funded conservative small-government groups to pursue more aggressive attacks on other regulations that were previously considered beyond reach.

“It’s premature to say we’re near a tipping point, but there is the possibility there,” said Brad Smith, a former Republican appointee to the FEC who co-founded a group called the Center for Competitive Politics that opposes campaign regulations on the same free speech grounds that the ACLU cites.

It filed a brief supporting the Citizens United challenge, and also litigated a related case in which a federal appeals court last year struck down contribution limits for independent groups airing political ads, spawning a new breed of major-donor-funded committee known as Super PACs, including American Crossroads, which spent tens of millions of dollars on ads attacking Democrats in the 2010 midterms.

Smith’s group is now pursuing federal lawsuits seeking to overturn other political money restrictions, including a closely watched case challenging a rule barring political action committees from giving to candidates if they raise unlimited contributions from corporations and individuals for ads.

“The vehicles are moving through the system by which we could see more rapid change,” said Smith. But, he added, “most of these cases could also lead to changes that we wouldn’t even notice very much.”

The outcome of a case challenging Arizona’s public financing system, which is scheduled for a March 28 argument before the Supreme Court, “will be the first big play on this,” Smith predicted. “It could set the tone on whether the Supreme Court is still moving in the deregulatory direction and it could indicate new targets to go after.”

Brought by a pair of small government groups – the Washington-based Institute for Justice and the Phoenix-based Goldwater Institute – on behalf of an Arizona state lawmaker who rejected public funds, the case, McComish v. Bennett, only challenges a specific provision in the Arizona system.

But it could have wide-ranging implications, particularly since it comes as advocates for reducing the flow of money into politics have been placing their hopes for dialing back the impact of Citizens United on proposals to publicly fund political races, including a bill that would set up such a system for congressional campaigns.

“Depending on its scope, an adverse ruling from the high court could undermine public financing systems across the country and increase still further the grossly disproportionate voice given to corporations and unions in our elections,” warns a memo by Gerry Hebert and Tara Malloy, lawyers at the pro-regulation Campaign Legal Center, which filed a brief defending the Arizona law.

“Just a year after the controversial decision in Citizens United v. FEC, the Court is once again poised to issue a ruling that could make it harder for ordinary citizens to compete with big money in our democracy,” their memo predicted.

Opponents of campaign rules argue that removing restrictions allows more voices to compete in the political marketplace. And they have a slew of other suits pending that could dramatically alter the political money landscape, including one challenging a rule that limited how much the Republican National Committee could spend supporting the unsuccessful 2010 reelection campaign of former Rep. Joseph Cao (R-La.).

The Supreme Court is set to decide on Friday whether to hear the case which is being handled by Jim Bopp, a Republican lawyer and leading opponent of campaign restrictions. The impact of the Cao case “could be real big,” if the court overturns the so-called coordination limits at issue, predicted Bopp, who has dozens of cases pending in courts around the country.

One seeks to advance the Citizens United ruling by challenging an Iowa law banning direct corporate contributions to state candidates, while a pair of others dispute whether non-profit groups called the Committee for Truth in Politics and The Real Truth About Obama that aired ads critical of then-candidate Barack Obama had to disclose their donors or activity.

While liberals have framed the assault on campaign spending restrictions as part of a vast corporate conspiracy, funded by the billionaire industrialist Koch brothers, to elect Republicans, it’s not just conservative groups challenging the campaign laws.

A Democratic donor is asking the Supreme Court to overturn a law prohibiting people from reimbursing others for donations. The donor, prominent Los Angeles lawyer Pierce O’Donnell, was charged with violating that law by reimbursing 13 employees of his firm and other associates who combined to contribute $26,000 to the 2004 Democratic presidential campaign of since-disgraced former Sen. John Edwards.

And a suit challenging the foreign contribution ban is being brought on behalf of a Canadian who wants to support President Obama’s 2012 reelection campaign and a dual Israeli-Canadian citizen who wants to contribute to Obama’s opponent and also to Sen. Tom Coburn (R-Okla.), to help prevent a “government-takeover of the health-care system in the United States,” according to the suit. It says both plaintiffs are legally authorized to live and work in the United States, but are not permanent residents.

Then there’s the ACLU, often a leading champion of liberal causes which nonetheless over the years has been among the most effective and best funded opponents of many campaign finance restrictions, deeming them unconstitutional infringements on free speech.

The group filed a brief supporting the Citizens United challenge and has suits pending challenging a provision in Connecticut’s public financing law, as well as a Maine law used to fine a blogger who failed to disclose his identity after spending $92 on a blog opposing a gubernatorial candidate.

But less than three months after the Citizens United decision, the ACLU hosted a vigorous debate on its campaign finance stances, ultimately voting to continue its support for the ruling, but to relax its opposition to certain types of public financing programs and to drop its opposition to contribution limits.

“I wanted to go further – I wanted them to change their position on Citizens United,” said Burt Neuborne, a former ACLU legal director and official at New York University’s Brennan Center for Justice who debated the matter before the board against noted First Amendment lawyer Floyd Abrams. (The Brennan Center opposed Citizen United, while Abrams argued for the winning side before the court).

“These are my friends and I told them ‘you put us in this position,’” said Neuborne. “You’ve got to help us get out of it. And the way to get out of it is to at least relax your position on (public funding) subsidies so that we can do some practical and significant work on public funding that will provide an alternative to a world in which private money controls everything.”

The debate did not once touch on partisan political considerations, Neuborne said, asserting the board “knew that their policy in the first place was not a policy that was going to help liberal candidates. They knew that it was policy that was in the long run going to help people with money.”

ACLU legal director Steve Shapiro said the “reexamination began before Citizens United” and “wasn’t a response to Citizens United.” Plus, he said “I cannot speak to what Republicans and Democrats are thinking. You’ll have to ask them. For us, it has never been about partisan politics.”

Even if campaign finance legislation opponents were motivated by partisanship, there’s no way to know which side will benefit from overturning a given restriction, according to Bopp, the Republican lawyer.

“It’s too dynamic to predict that. People don’t know what the future will bring, and how the constellation of forces will come together,” said Bopp, citing his challenge to the party limits on behalf of Cao. If it’s successful, Bopp said “coordinated expenditures will go down for the Democrats just like they will for the Republicans. And I don’t know who will benefit more. I have no idea. It’s just wrong that it’s there, as far as I’m concerned.”

Nonetheless, the ACLU’s shift is significant in that, in some cases, it could deprive campaign regulation opponents of a key ally that gave their effort a veneer of ideological diversity that sometimes made it an easier sell in the court of public opinion.

In the post-Citizens United world, though, opposition to campaign regulations is starting to come almost exclusively from the right, asserted Fred Wertheimer, president of the non-profit group Democracy 21, which filed briefs opposing the Citizen United and Arizona public financing challenges.

Calling out Republican congressional leaders who blocked proposed disclosure enhancements after Citizens United, the Republican appointees to the FEC, who have generally opposed vigorous enforcement of campaign rules, and Bopp, Wertheimer said “the longtime opponents of campaign finance laws are going to test as far as they can go, but we are going to be on the battleground at every stage.”

And Wertheimer, the dean of the campaign finance advocacy community, sees signs that the Supreme Court may be dialing back its deregulatory binge, including its refusal to hear a case challenging the ban on unlimited contributions to parties, as well as its upholding disclosure rules in the Citizen United decision.

“It’s a mistake in my view to assume that because there are five justices who have been hostile in some very important cases, that you can assume that the court is on the path to knocking out all campaign finance laws,” he said, though he would not go so far as to predict the court was done overturning regulations.

“I’m not saying that. I’m just saying this is a more subtle set of decisions playing out than people focus on.”

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