Campaign Finance Reformers Facing Major Political, Legal Obstacles

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Open Secrets Blog

Campaign Finance Reformers Facing Major Political, Legal Obstacles

by
Andrew Kreighbaum

Setting aside the now-famous Citizens United v. Federal Election Commission ruling from the Supreme Court, which allowed corporations and unions to spend freely on campaign advertisements, there has been a flurry of challenges to other campaign finance laws in the courts. (photo: Wikimedia Commons/UpstateNYer)

This has not been a kind year for campaign finance reformers.

Setting aside the now-famous Citizens United v. Federal Election Commission ruling from the Supreme Court, which allowed corporations and unions to spend freely on campaign advertisements, there has been a flurry of challenges to other campaign finance laws in the courts.

Although several of these challenges were filed before the Supreme Court ruled on Citizens United, that decision encouraged opponents of campaign finance reform to push their challenges even further, according to experts on campaign finance cases.

These ongoing lawsuits have challenged three broad sections of campaign finance law: corporate spending restrictions, public financing of candidates and disclosure laws.

Supporters of reform have seen some success against challenges to restrictions on soft money contributions. But public funding for candidates has been stymied in several cases, even in the middle of campaign season.

Campaign finance legal experts say that disclosure laws are the least vulnerable to challenges in the courts.

“It’s sort of been a lot of clouds with some silver lining for campaign finance reformers,” said Tara Malloy, associate counsel at the Campaign Legal Center, in reference to success in disclosure cases. The Campaign Legal Center is a nonpartisan, nonprofit group that provides analysis of a campaign legal issues and government ethics.

On other corporate spending cases, the rulings have been mixed. In Republican National Commitee v. Federal Election Commission, the same court that decided Citizens United reaffirmed a lower court’s ruling that upheld a law banning “soft money” contributions to political parties.

Other cases, such as SpeechNow.org v. Federal Election Commission, gave groups the green light to raise unlimited sums from individuals for independent expenditure committees -- a subtle difference from the Citizens United case, which involved only independent expenditures funded from corporate treasuries. The same issue is at play in Thalheimer v. San Diego, which touches upon restrictions for both corporate money and large donations from individuals for independent expenditures.

And recent lower court rulings in Connecticut, Arizona and Florida overturned parts of the states’ systems of public financing, targeting the trigger mechanisms that sent state dollars to a publicly funded candidate if an opponent’s spending passed a certain threshold. 

Loyola College of Law professor Rick Hasen, who runs ElectionLawBlog.com, is part of the team defending the city of San Diego in the Thalheimer v. San Diego case. He said the case is part of a wider plan by opponents of campaign finance laws to weaken regulations in the wake of Citizens United.

Hasen specifically called out attorney Jim Bopp, who has argued for many high-profile campaign finance cases, including Republican National Committee v. Federal Election Commission and Citizens United before it got to the Supreme Court.

“There’s no mystery to what’s going on,” Hasen said. “These groups have seen Citizens United as an opening to challenge a variety of campaign finance laws to try to push the courts in a deregulatory direction.”

Bopp, however, told OpenSecrets Blog that he is not undertaking a major effort to overturn campaign finance law -- he just represents many clients who frequently run up against laws that prevent them from speaking about public policy decisions.

“It’s just naturally part of my practice that these controversies would arise because of the nature of the clients that I have,” he said.

He agreed the Citizens United ruling made campaign finance laws vulnerable to more challenges.

“We always seek to apply the current state of the law to any challenges of campaign finance law that we make,” he said.

Bopp is also involved in cases challenging disclosure laws for groups supporting gay rights-related ballot measures in Maine and California. He is further involved in a Vermont case challenging the state’s classification of a group opposing abortion rights as a political action committee.

Members of Congress have attempted to adopt responses to the changing legal landscape of campaign finance with the DISCLOSE Act, which would add new reporting requirements for independent expenditures, and the Fair Elections Now Act, a voluntary public financing program that would dole out federal campaign funds to candidates who raise enough small-amount donations in their home state.

So far, such efforts have stalled.

The Fair Elections Now Act has not made it out of committee. And while the House passed the DISCLOSE Act in June, Republican senators have so far blocked it in Congress’ upper chamber.

In challenges such as Doe v. Reed, another Bopp case, litigants have turned to battling disclosure law as well.

The Doe v. Reed case resolves around whether the names of financial supporters of a ballot initiative to block domestic partnership rights in Washington state should be made public or not.

The Supreme Court earlier this year rejected Bopp’s arguments that all ballot measure petition-signers had the right to have their names kept secret, as OpenSecrets Blog previously reported. The high court left open the possibility that these particular ballot measure petition-signers might have that ability, however, and the case is still being litigated in lower courts.

“They might just now be turning to disclosure because sadly now that is what’s left,” said Malloy, of the Campaign Legal Center.

Among the cases currently still pending before the Supreme Court is McComish v. Bennett, which challenged Arizona’s public financing mechanism.

In May, the Ninth Circuit Court of Appeals ruled that the state’s “trigger provision” was constitutional. But a month later, the Supreme Court issued an unusual stay in the case. The decision changed the state’s election laws mid-race while the court decides whether or not to take up the case.

“It’s not clear whether or not the Supreme Court is done with its deregulatory project,” Malloy said.

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