WASHINGTON — Despite a Supreme Court decision to hear new challenges to campaign
spending limits, campaign finance reformers are doubling down on efforts to restrict the
role of money in politics.
The country’s highest court agreed Feb. 19 to hear McCutcheon v. the Federal Election
Commission, a case that challenges aggregate spending limits, which are overall two-year
restrictions on how much donors can give to political campaigns and committees. The case poses perhaps the most significant threat to campaign finance reformers since
Citizens United, the landmark 2009 decision that outlawed limits on independent campaign
spending by corporations and unions.
The case has been brought on behalf of the Republican National Committee and Jim McCutcheon, an Alabama campaign donor who wanted to contribute more to various campaigns and political party organizations over a two-year period than is allowed under aggregate spending limits. If the Supreme Court decides to strike down those limits, contributions could reach much higher levels and give wealthy donors outsize influence over political parties, reformers said.
“I’ve referred to McCutcheon as being potentially Citizens United 2.0,” said Nick Nyhart,
head of Public Campaign, a reform advocacy group. “When you look at the consistent
direction of the Supreme Court, they’ve gone in the direction of deregulating campaign
finance.”
Many campaign finance reformers say they are stepping up other initiatives to limit the influence of money in politics and to create greater transparency in campaign finance — even as it appears that the Supreme Court is headed toward greater deregulation of the system, according to campaign finance experts.
In light of a judicial atmosphere stacked against them, reformers say the most lasting ways
to achieve wholesale reform are a constitutional amendment that would overturn Citizens
United or a change in the composition of the court to increase the number of moderate to
liberal justices.
“Obviously, waiting for a Supreme Court justice to step down or die is not really a
reasonable way to make policy or run a reform movement,” said Bill Allison of the campaign finance watchdog group Sunlight Foundation. “The one thing I do know is that these battles take time … like the civil rights movement and women’s suffrage.”
And getting 38 states and Congress to pass a constitutional amendment is unlikely because most Americans don’t consider campaign finance reform a top issue, according to a Pew poll published in January 2012. Just 28 percent ranked it as a top priority for the president and Congress last year.
While activists acknowledge that such broad systemic changes are unlikely, critics go much further.
Bradley Smith, who heads The Center for Competitive Politics, a conservative group that favors the deregulation of U.S. elections, said he doubted the reformers will prevail.
Campaign finance reformers “will find a silver lining, and that’s okay to keep advancing your cause,” said Smith, who is also a former Federal Election chairman. “But let’s not make any mistake: If they lose the McCutcheon case, it’s a loss. And it’s potentially a big loss.”
Small Donor-Driven System
The Romney and Obama camps shelled out a record-breaking $6 billion combined in
the 2012 race for the White House. One way to curb the historic donation and spending
levels is implementing a matching-funds campaign finance system on the federal level like
those already functioning in some states, said Tara Malloy, senior counsel for the reform
advocacy group, Campaign Legal Center.
Three bills in Congress would create small-donor-funded federal systems, in which
matching fund programs would supplement the donations to campaigns that accept no
more than $100 per donor.
“We want to ensure that there’s a ‘clean’ system of funding for candidates
running campaigns,” Malloy said. “It’s much more difficult now to design a program that can
withstand the massive amounts of outside funding, but it’s still possible. … There are
models out there that in some ways can take into account the system of large outside
expenditures.”
Disclosure
Another short-term fix backed by reformers is the implementation of disclosure
requirements for donors to independent groups, a goal they believe can be accomplished
this legislative session.
In January, Rep. Chris Van Hollen, D-Md., reintroduced the Disclose Act, which would
require certain interest groups to release the names of donors who gave more than $10,000 to campaigns. Van Hollen said in a statement that the bill is “a first step to clean up the secret money in politics.”
“This is probably the most practical objective that we’re going to achieve in the 113th
Congress,” said Craig Holman, government affairs lobbyist for Public Citizen, a campaign
finance reform group.
The effort comes after Democrats failed to pass the same legislation last summer.
Republicans blocked it, arguing that it would intimidate donors from exercising their First
Amendment right to free speech.
The bill’s supporters, on and off Capitol Hill, have said that some in the GOP may back the
bill this time around after outside groups outspent parties and candidates in some key
Republican congressional races in November.
Stricter Coordination Regulations
Reformers frustrated with the current system also are prodding the government to more
closely ensure that independent spending groups are not coordinating with campaigns or
candidates, Malloy said. Although independent groups — like the conservative Crossroads
GPS and the liberal Organizing for Action — are officially barred from coordinating their
expenditures with the candidates or parties they support, enforcement of the rule is flimsy at best, she said.
One way to make sure that independent groups are run separately, Malloy said, is “through
a more robust definition of what it means to coordinate an expenditure.”
“We have to pass a better law and better regulations, and only then can we start going after
these groups who are very enmeshed with candidates they claim to be independent from,”
she said. “You’re looking at groups that have the fingerprints of parties and candidates all
over them.”
Looking Ahead
But while campaign finance reform groups believe the momentum is on their side, some in
the campaign finance community say their efforts amount to nothing more than wishful
thinking – especially if the McCutcheon case strikes down aggregate limits.
“If they lose this case, it’s a loss — anything they’re saying is just blowing smoke,”
Smith said.
And a Republican-controlled House and a GOP filibuster threat in the Senate make reform
through legislation difficult. In December, Minority Leader Sen. Mitch McConnell, R-Ky., met
with the House Republican Study Committee to discourage conservatives from signing on
to laws that would require certain political groups to reveal their donors.
Disclosure legislation is particularly likely to face an uphill climb, said Thomas Mann, a
campaign finance expert at the Brookings Institution.
“The degree of polarization and animus across the board is strong,” Mann said. “In
particular, Republicans are happy to see further deregulation of the system.”
Until Citizens United, the reform community had been successful for a decade, after the
passage of the 2002 McCain-Feingold Act limited contributions to national party committees and regulated when outside groups could independently advertise during elections.
Now, the Supreme Court is set down a path of deregulation that is nearly impossible to
reverse, Mann said.
Still, some reformers are hopeful that incremental gains can be achieved, even in light of
the Citizens United decision.
“If you want an entirely small donor-funded campaign system in America, it’s hard to see
how to achieve that with Citizens,” Malloy said. “But if you’re willing to compromise and
alleviate the worst abuses of the system, it is possible.”
