Dec 4, 2013
Congress Scrambles in Wake of Court’s Campaign Finance Ruling
Posted on Apr 17, 2010
This article appeared previously on The Huffington Post.
When the United States Supreme Court handed down its Citizens United v. FEC ruling in January, it did more to sound the alarm on special interest money in politics than any campaign finance reformer could have dreamed. The first instinct among legislators in responding is to not make the perfect the enemy of the good. But the question still circulating is: how far will that response go? There is some worry that a quick political gesture could very well supplant meaningful, further-reaching policies to address the role money plays in American elections.
The legislative response to Citizens United will be limited, yet it could lay the groundwork for ushering in a novel approach to campaign finance going forward: one that bypasses the Roberts Court’s favoritism for the wealthy few by activating the lower- and middle-income many. Of course, this will all depend on the Democratic leadership’s endurance on the issue.
Immediately following the Court’s ruling in January, the White House and Democrats in Congress vowed to soften the blow from the decision through whatever means possible. In his weekly radio address, after criticizing the decision during his State of the Union, Barack Obama promised a “forceful response” from his administration. And in a conference call to reporters, Senator Charles Schumer dismally warned that, “if we don’t act quickly, this decision will have an immediate and devastating impact on the 2010 elections.” Now, just three months later, Schumer and Congressman Chris Van Hollen intend to follow through on the promises with the formal introduction of a Citizens United fix bill in the coming days.
Back in February, the two high-ranking Democrats (Schumer is a former DSCC Chairman and the third ranking Democrat in the Senate; and Van Hollen is the current DCCC Chairman) put forward a preliminary itemized plan to address the effects of Citizens United that would withstand judicial reversal by operating within the legal framework established by the Court in its decision. According to Van Hollen spokeswoman Bridgett Frey, the bill was released early on so as to allow ample time “to incorporate feedback and craft strong legislation that responds to the court’s decision.”
The final bill is said to be pretty close to that original framework, minus a provision that would require that corporations increase disclosure of political spending to their shareholders (this is to be included in a separate Financial Services bill instead). Congressional spokespeople tell me that the salient concern is having it withstand further Supreme Court challenges. And while it has yet to garner support from across the aisle, polling suggests that it could be a prime candidate for the long lost art of bipartisanship.
The question of whether each element of the bill is susceptible to judicial reversal is a prudent one—and the answer is very much up in the air for some provisions. According to Richard Briffault, Columbia Law School’s Joseph P. Chamberlain Professor of Legislation and a noted authority on the Court’s history of campaign finance rulings, “the bill seems to go to the limit of what Citizens United left open—foreign corps, pay-to-play, disclaimers and disclosure, coordinated expenditures—without crossing the line…[But] the extension of pay-to-play to independent expenditures probably pushes hardest.”
Briffault has concerns that certain elements could be difficult to hash out in practice, such as determining whether a firm qualifies as “foreign” enough (the bill sets this at 20% foreign owned, but the controlling interest in a public company isn’t always static), or whether it is legal to impose a new TARP restriction on bailout recipients after they’ve already accepted funds under the original conditions. Moreover, extending the pay-to-play ban on contractors and TARP recipients to independent expenditures could prove problematic, since it is precisely this distinction that Citizens United did away with in the first place. Beyond these possible trip-ups, Briffault sees the Schumer-Van Hollen proposal as instituting only very mild extensions of already existing laws.
Other Court followers are even less confident in the proposed bill’s judicial resiliency. For his part, Harvard Law professor Lawrence Lessig, a leading progressive voice in campaign finance matters, sees almost every provision in the proposed legislation as either ineffective window dressing, or as a prime target for the Court to strike down. He tells me, “I think one could not be too strong about this: It is absurd to suggest this is a ‘fix’ to Citizens United. The bans are plain targets for new lawsuits… All and all—[this bill is] a complete zero. And a strong signal of the failure of the Democrats to deliver on the reform promise of this administration.”
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