In his lengthy dissent of the Supreme Court’s landmark campaign finance decision issued last week, Justice John Paul Stevens warned that the majority’s ruling will increase the influence corporations have in elections, at a cost to political parties.
The 5-4 decision in the Citizens United case, he wrote, will “dramatically enhances the role of corporations and unions — and the narrow interests they represent — vis-à-vis the role of political parties — and the broad coalitions they represent — in determining who will hold public office.—
That conclusion is shared by the parties, though they vociferously disagree over both the ruling and possible solutions to the imbalance.
Republicans lauded the court’s decision, which struck down limitations on direct corporate spending to support or oppose candidates — part of the 2002 Bipartisan Campaign Reform Act. Corporations still cannot, however, donate directly to candidates.
Democrats, while lambasting the ruling on the whole, said the effect on the party committees is certainly a concern on their side of the aisle as well.
“This radical decision by the Supreme Court placing corporate special interests over the American people makes the job for candidates and candidate committees more challenging to get their message out,— said Democratic Congressional Campaign Committee Chairman Chris Van Hollen (Md.).
Democratic campaign finance attorney Marc Elias noted that candidates and parties are still going to be operating under hard-money rules — referring to money raised under federal restrictions that limit the amount an individual or political committee can donate. But they are going to be sharing “what was already a crowded electoral stage with more well-heeled participants— who can dip directly into their corporate, trade association or union treasuries.
The decision is also expected to trickle down to the state level, where the broad language in the majority’s decision will make it impossible for the approximately 30 states with restrictions on corporate election spending to enforce their laws, campaign finance experts say.
“The question,— Elias said, “is what’s the remedy?—
That’s where the parties have two very different responses.
Democrats on Capitol Hill immediately began scrambling Thursday to try to come up with a legislative response to counter the ruling’s effect. Republican National Committee Chairman Michael Steele, in contrast, said that “there is still more work to be done— to eliminate other restrictions on “the free exchange of ideas.—
In fact, the RNC is already at work trying to tear down another element of the BCRA, popularly known as McCain-Feingold, which would put parties back on a similar playing field as corporations and unions. In a lawsuit filed in 2008, RNC v. Federal Election Commission, the party challenged the constitutionality of a provision of the law that prohibits national parties from soliciting, receiving or spending any funds that were not subject to federal contribution limits, also known as soft money. The RNC has argued that it should be allowed to raise soft money for purposes not related to advocating for candidates, such as party-building and redistricting efforts.
Oral arguments were held in August, and the parties are now awaiting a decision from the U.S. District Court for the District of Columbia.
Attorney Mark Braden, who spent 10 years as chief counsel at the RNC, said the effect of the Citizens United decision will not be known until this litigation is also decided.
But he said the Supreme Court’s ruling could bolster the RNC’s rationale, though it’s too late to work the decision into its arguments.
“It’s easier now to point to the lack of a level playing field,— he said. “It’s hard to rationally support a limitation on party activities when you’re going to let every other player in the process speak without limitation.—
Tara Malloy, associate legal counsel at the pro-campaign finance reform Campaign Legal Center, agreed that while the decision “does not directly affect any provisions that regulate parties,— it provides them with political ammunition in the future.
However, she said there are a “whole host of concerns about corruption that are unique to political parties,— due to the direct linkages with candidates. And she noted that in 2003 the Supreme Court upheld the soft-money restrictions in the BCRA based on that anti-corruption rationale.
An RNC victory in the case would eviscerate the heart of McCain-Feingold’s efforts to limit the influence of money in politics, which is why many Democrats would prefer to see equity returned by having the Citizens United decision rolled back instead.
“While Republicans have always maintained that the limits of the party committees are wrong, Democrats come at it from a different point of view,— said Larry Noble, a campaign finance attorney and former FEC general counsel. “They are willing to accept limits on the party committees— as long as there are also restrictions on other entities seeking to influence elections.
However, Noble said that after an initial reading of the ruling, he did not think “the Supreme Court left a lot of room— in its ruling to tweak with the restrictions on corporate spending.
And he mused that Democrats’ position on restrictions of party fundraising “may change if they can’t enforce limits on the corporations.—