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NJ Daily / CONGRESS

Campaign Finance Reform's Non-Comeback

photo of Reid Wilson
January 19, 2012

Two years ago this week, the Supreme Court dealt a blow to advocates of strict campaign finance reform. But the decision in Citizens United v. Federal Election Commission hurt more than just the provisions of the Bipartisan Campaign Reform Act it struck down. The case exposed the new reality that, even at a time of unique discontent with the status quo in Washington, the average American has a far smaller say in today's politics than at any time since the Watergate era.

The Republican presidential primaries this year have been an exhibition in big-money politics. Super PACs backing one candidate or another have already spent more than $27.5 million on television advertisements, according to data compiled by the Center for Responsive Politics. And that's only within the Republican primary -- American Crossroads, the American Action Network, the House Majority PAC, and Priorities USA, to name but a few, are stockpiling millions to spend on independent ads this year.

Those outside groups, funded by a relatively few very wealthy donors, are likely to account for a larger percentage of political spending this year than they have in years past. President Obama's campaign, and that of his eventual Republican rival, will take in most of their money from donors giving less than $100 each, while the largest super PACs will benefit from donations that come in seven-figure increments.

 

In truth, Citizens United was hardly the watershed moment at which money began flowing freely into politics. Money in politics is like water: No matter how hard the surface, no matter how impermeable, it will find a way in. After the McCain-Feingold reform law passed in 2002, supposedly limiting the influence of outside groups, federal courts began rolling back parts of it. In 2006, in FEC v. Wisconsin Right to Life, the courts said it was unconstitutional to limit issue ads during election season. In 2009, a suit brought by the Democratic organization EMILY's List allowed some soft money back into the system.

Over the years, new outside organizations have mastered the art of finding loopholes within existing law, allowing them to spend heavily on independent ads that influenced key races. Liberal groups like Campaign for America's Future and Americans United for Change and conservative groups like the Swift Boat Veterans for Truth -- all organized under Section 527 of the Internal Revenue Service code -- played big roles in 2004 on behalf of both George W. Bush and John Kerry.

More sharply defined outside groups like the Sierra Club and the Club for Growth spent heavily on behalf of both parties in 2006. And by 2008, outside spending had ballooned to more than $119 million on House and Senate candidates alone, according to a 2010 report by the Campaign Finance Institute, and another $162 million on the presidential race, according to FEC data.

Even before the Supreme Court weighed in with the Citizens United decision, outside groups were getting better at funneling money to political campaigns. Consider the 2010 special election in Massachusetts to replace the late Sen. Edward Kennedy: In the weeks leading up to the January election, which took place the week before the Citizens United decision came down, outside groups spent more than $2.5 million on electioneering communications alone -- a figure that doesn't include millions more spent by unions, the Tea Party Express, and other groups on more heavily regulated direct advocacy.

Outside spending this year is going to make the 2008 election cycle's look relatively cheap.

Americans say they don't actually want that money in the political system. A Pew Research Center poll released on Tuesday shows 65 percent of voters believe Citizens United has had a negative impact on politics, an opinion that spans partisan divides.

And yet those opinions hardly matter, both because voters don't cast ballots based on the way candidates fund their campaigns and the infrastructure that once pushed McCain-Feingold has been left without a seat at the table.

There is plenty of evidence that voters don't make their decisions based on how a campaign is funded. Democrats complained bitterly about outside-group spending in advance of the 2010 campaign; that didn't save a single one of the 63 seats they lost that year. In the last month, Newt Gingrich, hammered by a super PAC that backs Mitt Romney's campaign, has sought to highlight that outside spending; getting bogged down in the process so much has blunted any efforts to draw real distinctions between the candidates, to the extent that Romney now openly engages his rivals on such process arguments.

But often overlooked is the extent to which the pro-campaign finance reform community has suffered in Washington. Of the four biggest backers of the original reform measure that passed in 2002, three of them -- former Sen. Russell Feingold, D-Wis., and Reps. Christopher Shays, D-Conn., and Martin Meehan, D-Mass. -- have lost reelection bids or retired. Only Sen. John McCain, R-Ariz., is still in office; and since his 2008 presidential campaign, he has not put forward follow-up legislation.

Even a hard push from McCain and his reform allies wouldn't do much good, because the real obstacle to any new campaign finance legislation comes from the man who leads McCain's conference. Senate Minority Leader Mitch McConnell led the initial opposition to McCain-Feingold; he was the lead plaintiff in the first major challenge to the law, a 2003 case in which the Supreme Court upheld the legislation's ban on soft money in most cases.

McConnell's opposition to any new reform legislation has been the one constant in the campaign finance debate. And his position atop the Senate Republican Conference gives him an influence over the agenda that reform advocates simply can't match. In essence, the groups that advocate campaign finance reform have no seat at the table; McConnell and his allies sit very near the head.

We have not yet seen the full extent of the Citizens United ruling, given the breadth and scope of the role that outside groups will take in this year's elections. But what is clear is that two years after the Supreme Court opened the floodgates, efforts to roll back that decision have neither the political nor the legislative strength behind them to move in any meaningful way.

 

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