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Congress Scrambles in Wake of Court’s Campaign Finance Ruling
Posted on Apr 17, 2010
The foremost misconception—or at least exaggeration—plaguing the Citizens United ruling is that, in the words of President Barack Obama, it “reversed a century of law that I believe will open the floodgates for special interests ... to spend without limit in our elections.” This gives the decision too much credit. In reality, the floodgates were already open.
During the 2008 Minnesota Senate race between Democratic contender Al Franken and Republican incumbent Norm Coleman, the corporate-funded U.S. Chamber of Commerce ran a television advertisement depicting Franken with duct tape over his mouth. A narrator’s voice came in to say: “High taxes hurt. But it seems like every time Al Franken opens his mouth he talks about raising taxes. This from a guy who was caught not paying his own taxes in 17 states ... Maybe he shouldn’t open his mouth ... Tell Al Franken that high taxes aren’t very funny.”
Non-party election communications like the Chamber’s Al Franken ad were generally exempt from regulation for decades, from 2002 back to 1976, when the court created the distinction between “issue” and “express” advocacy in its Buckley v. Valeo decision. During that era, whether or not electioneering communications qualified as “express advocacy”—which was subject to regulation—depended on whether they contained the “magic words,” such as vote for/against or elect/reject.
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However, following John Roberts’ appointment in 2005, and, more importantly, Samuel Alito’s in 2006, the Court transitioned back to narrowing the grounds for regulation and opening the door for independent political spending. In its 2006 Randall v. Sorrell decision the Court struck down Vermont’s attempt to regulate campaign contribution limits. And in WRTL v. FEC the Court did away with McCain-Feingold’s corporate and union electioneering communication provision—thus re-allowing corporations and unions to run “issue advocacy” ads, as long as their only reasonable interpretation wasn’t as an “appeal to vote for or against a candidate.”
When people like the president say that Citizens United opened the “floodgates,” what they mean is that corporations (and unions) no longer have to worry about the “issue advocacy” vs. “express advocacy” distinction. The Chamber of Commerce can now run an ad that says, “Vote for Candidate A,” instead of “Tell Candidate A that high taxes aren’t very funny.”
Whether or not there actually will be a flood of corporate expenditures in the upcoming November election is yet to be seen. For his part, Malbin doesn’t think this will be the case, telling me, “I don’t think most for-profit corporations are likely to increase their public affairs budget because of Citizens United. They will probably just move money around within that already existing budget.” This suggests that some corporations may indeed indulge in the lesser restrictions, but that they won’t break the bank doing so.
With the dual standoff between a deregulatory Court on the one hand (Justice Stevens’ retirement will not alter the liberal-conservative composition of the Court), and a demonstrably obstructionist and anti-regulation Congressional opposition on the other, any promising path forward for the Democratic leadership would seem elusive. Nevertheless, there is a novel approach among serious thinkers across the ideological and political spectrum that is increasingly gaining traction among Members of Congress and the administration. Rather than battling the inexorable stream of political money from the wealthy few, the answer, according to some, may lie in addressing the other side of the equation: the middle- and lower-income “many.”
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