A Wake-Up Call On Campaign Finance Reform

The Supreme Court's decision in Citizens United v. Federal Election Commission turns back the clock on almost a century's worth of campaign finance regulation. The court, under Chief Justice John Roberts, held for the first time that a corporation is entitled to the same First Amendment protections for its electoral spending as an individual citizen. Suddenly, the billions of dollars in corporate treasuries are available to advocate the election or defeat of candidates.

President Barack Obama was concerned enough by the decision to condemn it in his State of the Union address. And Congress is scrambling to mitigate the damage, including closing a loophole opened up by the decision that would allow foreign-owned domestic corporations to spend in American elections.

But bad as this decision was, it may represent only one step in a broader effort by anti-reform groups to dismantle most of the campaign finance reforms on the books.

For example, lawyers behind the Citizens United case are also attempting to strike down a number of political disclosure laws. If successful, their lawsuits may make the new corporate-funding stream unleashed by the Supreme Court virtually untraceable, except of course to the politicians benefiting from the corporate money.

Just days after the Supreme Court decision issued its ruling, James Bopp Jr., general counsel of the James Madison Center for Free Speech and architect of the Citizens United lawsuit, told The New York Times that in his view "[g]roups have to be relieved of reporting their donors if lifting the prohibition on their political speech is going to have any meaning."

This stands in sharp contrast to the past statements of many conservatives, who claimed that disclosure was the only legitimate form of campaign finance regulation and indeed obviated the need for substantive regulations, such as the corporate restrictions and contribution limits. But of course many of those statements were made prior to the ascension of Justices John Roberts and Samuel Alito to the Supreme Court.

The only silver lining in the Citizens United decision was that an 8-1 majority upheld the challenged disclosure provisions of the McCain-Feingold Act. Nonetheless, the Madison Center and other well-funded anti-regulatory groups have filed and are still litigating a string of disclosure challenges in the lower courts, hoping, no doubt, again to reach the Roberts court and find a receptive audience. These groups have challenged state disclosure laws modeled on McCain-Feingold in West Virginia, Vermont and Ohio, as well as state laws relating to the disclosure of ballot initiative activities in Maine and Washington.

Emboldened by the favorable decisions issued by the Roberts court, opponents of campaign finance laws have more laws in their sights than simply disclosure requirements.

The Republican National Committee has filed suit to overturn the federal party soft money ban, even though it was upheld by the Supreme Court in McConnell v. FEC in 2003, prior to the arrival of the two new justices.

Further, federal and state campaign finance laws pertaining to public financing programs, political party fundraising requirements and the regulation of political committees are being challenged across the country.

It is clear that the anti-reform activists will not rest until American elections have been reduced to a spending free-for-all, dominated by corporations and other special interests and lacking even the mitigating feature of meaningful public disclosure.

Given this litigation assault, preserving the political voice of everyday citizens and maintaining even a semblance of transparency in U.S. elections will require legislators, reform groups and ordinary citizens to oppose any and all legislative or legal attempts to further scale back campaign finance laws.

Unfortunately, Citizen United was not the endgame. It was only a wake-up call.
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Tara Malloy is associate legal counsel at the Campaign Legal Center, a nonpartisan, nonprofit organization that works in the areas of campaign finance and elections, political communication and government ethics