We are all familiar with the devastating Supreme Court decision, Citizens United v. FEC that went down this January. However, corporate interests, in conjunction with the political right, have mounted a serious offensive to the entire clean election infrastructure. They are led by Republican operative/lawyer James Bopp, whose end goal is a United States “free” of campaign finance laws, where corporations can make unlimited contributions to elections anonymously. The legal battlefield of campaign finance reform is fierce, and I’ve outlined some key cases below, which I’ll break down in greater detail once the Supreme Court releases its decisions.
For starters, check out the Campaign Legal Center, which has put together an absolutely incredible document outlining the corporate right’s grand plan for methodically eviscerating campaign finance laws. It’s a long read, but here’s part of the intro:
Instead, their apparent goal is to go back nearly a century and dismantle many of the campaign finance reforms that have governed elections for decades, and to revert to the era of unregulated political spending that characterized the turn of the 20th Century.
It is clear that even disclosure laws – which conservatives have long championed as the only legitimate form of campaign finance reform – are under attack.
James Bopp, the attorney who initiated Citizens United and a longtime member of the RNC, for instance, has made no secret of the fact that his ultimate goal is the elimination of virtually all campaign finance restrictions including the reporting of donors. In January, he told the New York Times that, “[g]roups have to be relieved of reporting their donors if lifting the prohibition on their political speech is going to have any meaning.”
The litigation effort against decades’ worth of campaign finance laws are concentrated in five principal subject matter areas:
I. Attacking Limits on Use of Corporate and Union Treasury Funds
II. Undermining Meaningful Political Disclosure
III. Going After the “Soft Money” Ban and Coordinated Spending Limits
IV. Challenging Public Financing Programs
V. Attempting to Deregulate “527 Group” Spending
There are several cases we should be watching closely in the coming days and weeks.
Doe v. Reed: This case, brought by James Bopp, representing Washington state anti-gay activists, asks the Court for a constitutional right of anonymity for individuals who sign ballot initiative petitions.
The plaintiffs feebly argued petition signatories might face dangerous retaliation for their anti-gay views. During oral arguments, Justice Scalia mocked this concern, “The fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate or to take part in the legislative process.”
The real purpose of this case was not to protect anti-gay Washingtonians, however, but to weaken disclosure requirements in election law. Bopp has a long term strategy to undermine disclosure requirements for corporations, so that they can funnel unlimited money into elections anonymously.
This decision could come down as soon as Tuesday.
McComish v. Bennett: This case was brought by independently wealthy and heavily funded Republicans for state office challenging the Arizona Citizens Clean Elections Act, which provides public matching funds to candidates running with only public financing. The law was passed in 1998 after a series of embarrassing scandals in which Arizona legislators were caught taking campaign bribes in exchange for votes.
The plaintiffs claim that public funding chills their free speech rights, because whenever they raise money, their opponents would receive matching funds to use speech against them. They also claim that the reasoning behind the Arizona Citizens Clean Elections Act was undercut by the Supreme Court’s holding in Citizens United that campaign spending was not inherently tied to corruption. The Ninth Circuit soundly rejected both arguments, finding that the Arizona law responded to an important state interest in promoting clean elections, and that the candidates’ speech rights had not been chilled.
Now the plaintiffs have asked Justice Kennedy to stop Arizona from distributing public matching funds until the Supreme Court hears the case. Justice Kennedy will probably bring the case to the conference and issue some sort of decision in the coming days. Imagine, the Arizona government actually on the right side of justice in this case…
Credit rating agency cases: As lawsuits and legislatures go after the credit rating agencies that misled investors, rating agencies are hiding behind the First Amendment. It’s an argument we’ve seen time and time again from corporations, who claim free speech to shake off regulation and dupe consumers. I’ll be giving this issue its own full post soon, but here’s the legal issue in a sentence: Rating agencies are claiming the same First Amendment rights as news organizations, arguing that an “actual malice” needs to be applied to their thoroughly misleading bond ratings, which cost investors millions. This difficult to meet legal standard is not invoked for information that is privately disseminated, so expect that to be the key issue in a number of suits going forward.
Corporations will not rest until they can run rampant over the American people, and they have an army of corporate lawyers helping them. Unless you are an attorney with lots of pro-bono time on your hands, there is not much you can do to help win the cases, but we need all hands on deck to get this critical issue out there. The silver lining of Citizens United was alarm bells it set off as corporate thugs and their robed cronies were stealthily trying to rewrite the Constitution.
So, spread the word, tell the people, and fight back. Fight back in your local paper, in your state legislatures, and in the upcoming elections. And pace yourself, because the battle for clean elections is one for the long haul. Without clean elections, all other issues will die a quiet death.
In the interest of full disclosure, something that I support as policy, I am assisting two coalition groups, Free Speech for People and Move to Amend. Both groups are focused on passing a Constitutional Amendment to address the role of corporations in elections (and possibly the larger issue of corporate personhood- but that’s a topic for another time). They are both involved in waking people up to this corporate assault on democracy.