Harvard Law & Policy Review

citizens united

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Citizens Will Suffer if Political Parties Extend Citizens United Even Further

By Peg Perl*

Today is the sixth anniversary of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission. The electorate has survived three election cycles of being bombarded by advertising funded by almost unlimited amounts of outside group spending in candidate races from local school board to President of the United States, most of it minimally disclosed—if at all. Yet, the major political parties are arguing publicly that they—not the voters—are the true victims of the Citizens United ruling.

As early as 2010, there was some argument that keeping political parties subject to contribution limitations and prohibitions while also enforcing robust public disclosure would harm parties vis a vis outside groups. National as well as some state-level Republican Party committees brought federal lawsuits immediately after Citizens United challenging limitations on political party contributions on constitutional grounds. The Fifth Circuit rejected the challenge, stating “we do not read Citizens United as changing how this court should evaluate contribution limits on political parties and PACs.” The special three-judge panel set up to rule on challenges to modern campaign finance law also upheld political party contribution limits, and the U.S. Supreme Court summarily affirmed on direct appeal. The three-judge panel in that case told the parties that the arguments about disparity between political parties and outside groups in spending and contribution restrictions was not a constitutional violation, but instead a policy argument to be made to Congress.

National political parties have a few friends and allies in Congress, and the 2014 “Cromnibus” bill funding the government included provisions that loosened restrictions on party fundraising. Specifically, the change in law raised the cap on contributions to political party committees from approximately $32,000 per year to over $324,000 per year for various committees controlled by the national parties.

Representatives of some state political parties think they still need help and that there is a constitutional right to raise money free of contribution limitations as long as it is spent on advertisements created independently of candidates. The Republican Party of Louisiana is arguing to a three-judge federal panel that it is unconstitutional to require the party to prohibit funding federal election activity with money not subject to federal contribution limits. Similarly, the Colorado Republican Party is seeking the constitutional right to set up its own internal committee that would not be subject to state law contribution limitations. Both of these constitutional challenges are still pending.

Yet, political parties are inherently differently situated—and indeed more powerful—than the outside groups let loose by the Citizens United ruling. As we see in the news daily, national and state political parties have the power to run Presidential caucuses or primaries and to set the number and schedule for Presidential debates. In most states, the political parties have preferential ballot access and control the means by which candidates can use that access. Political parties still have a privileged role in our political electoral system, something that outside money just can’t buy.

In addition, the ties political parties have to candidates and elected officials is exactly why the U.S. Supreme Court has repeatedly upheld as constitutional different and harsher contribution limitations for political parties to address the potential for corruption. Even the most recent Court case striking down aggregate biennial limits for contributions to various committees made this clear: “Our holding about the constitutionality of the aggregate limits clearly does not overrule McConnell’s holding about ‘soft money [to parties].’”

There is no constitutional imperative that political parties must be freed from contribution limits, but there remains a policy debate about whether that should be done to “rescue” the parties from allegedly unfair competition with outside group spending. The Brennan Center’s recent report “Stronger Parties, Stronger Democracy” does not advocate for complete removal of contribution limits on political parties. Instead, it offers a combination of public financing and re-tailoring the federal regulations on parties to encourage more broad-based participation of citizens in parties and elections.

Simply allowing political parties to take large checks from wealthy donors seeking specific policy outcomes from subsequently elected officials from that party only increases corruption. Contribution limitations are a needed check on the potential for pay-to-play politics when only two major political parties control most of the political and governing process of this country at the state and federal level.

 

* Peg Perl is Senior Counsel at Colorado Ethics Watch, a nonpartisan nonprofit organization and is a party in the pending case Colorado Republican Party v. Ethics Watch in the Colorado Court of Appeals.

 

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10th Circuit: Do Voters Really Need Political Spending Disclosure?

By Peg Perl*

Over the last 10 years, the U.S. Supreme Court has repeatedly struck down campaign finance spending bans and contribution limits while keeping disclosure requirements intact. According to the Brennan Center, the Roberts Court has invalidated six different major provisions in federal and state laws and “significantly reshaped the legal landscape dictating how much big money can flow into political races.”

However, even the Citizens United case almost unanimously (8-1) reiterated the constitutionality of the public disclosure requirements when individuals or corporations run advertisements during the final weeks of the campaign season naming a candidate (“electioneering communications”). As Professor Rick Hasen notes in his 2011 analysis of Citizens United, the Court re-emphasized that the voting public has an “informational interest” in knowing who is speaking about candidates even when those ads avoid specific calls to vote for or against the candidate.

Political spending by ideological corporations continues to be the battleground for campaign finance cases as groups seek to push the limits of Citizens United. As the 2016 election looms, the Tenth Circuit Court of Appeals is considering two major challenges to Colorado campaign finance law.

The cases argued last week challenge Colorado state disclosure laws as applied to political ads run by nonprofit corporations: Independence Institute v. Williams and Coalition for Secular Government v. Williams. In both cases the groups objecting to disclosure are represented by the Center for Competitive Politics, founded by former Republican FEC Chair Bradley Smith to roll back campaign finance regulation at the state and federal level.

Although the cases were heard by two different panels, questioning in both centered on the extent to which voters have an “informational interest” that justifies disclosure of the amount raised and spent on the political ads and whether the standards for regulation first articulated in Buckley v. Valeo (1976) still govern our 21st century political landscape.

The Independence Institute challenge picks up where Citizens United left off; the group wanted to run “electioneering communications” in 2014 without filing required disclosure of money raised and spent for those ads. Senior Judge Michael Murphy noted that a 10th Circuit reversal of the District Court opinion upholding the disclosure requirements would create a circuit-split with other post-Citizens United cases. Independence Institute argues that other Circuits erred by not applying language from Buckley and limiting modern disclosure rules to only ads that are “unambiguously campaign related.” The group is also pursuing a companion challenge to be heard later this month at the D.C. Circuit, where the District Court similarly rejected these same arguments against the federal “electioneering communications” disclosures pursuant to Citizens United.

In Coalition for Secular Government, Colorado is appealing a District Court ruling striking down the state “issue committee” registration and reporting requirements which are triggered by spending more than $200 in ballot measure elections. Here, the group raised and spent money to publish a research paper online and buy ads specifically urging voters to vote no on a state initiative. In this argument, the 10th Circuit judges struggled with prior circuit precedent holding that the “informational interest” of voters in ballot measure elections was minimal compared with candidate elections. Newly confirmed Judge Carolyn McHugh suggested a reexamination of that position since all other Circuits have not found such voter interest lacking in ballot measure elections.

Both panels should issue decisions in time to define the scope of information that will be available to Colorado voters in 2016. As a swing-state saturated with political ads, this is not a theoretical concern. The right to vote loses meaning if voters are denied information about the candidates and issues on which they need to decide. This is especially apparent in Colorado where the voters themselves enacted these disclosure requirements as a popular initiative, overwhelmingly stating that they do have an informational interest in knowing what money interests are trying to influence their vote. If the 10th Circuit strikes down those provisions then voters will be left in the dark when making their choices in 2016.

 

* Peg Perl is Senior Counsel at Colorado Ethics Watch, a nonpartisan nonprofit organization. Ethics Watch filed Amici briefs together with other organizations in the cases discussed above.

 

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Thinking About an Agenda for a New Supreme Court, Part I

By Mark Tushnet

Suppose that a Democratic president makes a “relevant” appointment to the Supreme Court – that is, a replacement for one of the Court’s conservative justices (among whom I include Justice Kennedy). What can progressive scholars and activists say about the new Court’s agenda?

Some immediate qualifications:  You shouldn’t think that the President will name and the Senate confirm someone who has exactly the agenda you’d like. The pool of potential nominees is already mostly set, and consists of mostly reasonably conventional lawyers. So, don’t think “creatively” about who would be named. Instead, think about what’s likely to be realistically achievable with a Court consisting of five more or less standard Democratic-nominated justices.

Second, don’t think that you’re going to be able to control the issues presented to the Court. You’ll have your ideas about the new Court’s agenda, but lawyers all over the country will have their ideas and, more important, they’ll have clients who might find advantages in pursuing lines of argument that you think mistaken or cases that you think marginal to a progressive agenda. This point is especially important in connection with thinking about designing a long-term litigation campaign aimed at using incremental changes in the law to reach some larger goal. You might think that one specific case or type of case should precede another, but you can’t control the course of litigation.

[Read more…] about Thinking About an Agenda for a New Supreme Court, Part I

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Campaign Finance Reform Defeated (Twice)

By Tom Watts

Today, the Senate rejected a constitutional amendment that would have reversed many of the Supreme Court’s campaign finance decisions, most notably Citizens United. Combine this with the defeat of the lone Republican candidate for Senate who supported campaign finance reform and was backed by the Mayday SuperPAC, and the past couple days have not been good for campaign finance reform. This should come as no surprise: as I have recently argued, campaign finance reform is a dead end. There are plenty of other good areas of election law to examine, but this one is going nowhere fast. [Read more…] about Campaign Finance Reform Defeated (Twice)