Campaign reform advocates stunned by the Supreme Court's sweeping rejection of existing limits on political spending are taking comfort in two small consolations.
First, while the court threw out decades-old constraints on corporations and unions today in Citizens United v. Federal Election Commission, it preserved disclosure requirements that at least force those expenditures into the public eye.
Second, the court's dramatic reversal does not threaten the existing ban on direct corporate and union campaign contributions. So while those players may now lavish money from their treasuries on independent campaign expenditures, they still may not donate directly to candidates.
If the court'sCitizens United ruling is any indication, First Amendment advocates will enjoy the upper hand in future challenges.
"It clearly doesn't neuter the law," said election lawyer and former FEC Chairman Trevor Potter, general counsel of the Campaign Legal Center. "It upholds the disclosure provisions for all of the spending, it upholds the soft money ban." Referring to the 2002 Bipartisan Campaign Reform Act, he added: "It removes a piece of the McCain-Feingold architecture, but it leaves much of it intact."
But it's an open question how meaningful or effective disclosure requirements will be in a regime that allows corporations and unions to spend freely in campaigns. And with other campaign finance challenges in the pipeline, and the high court so clearly disposed to deregulation, it may only be a matter of time before other election restrictions topple.
In a dramatic 5-4 ruling authored by Justice Anthony Kennedy, the high court cited "the substantial, nationwide chilling effect caused" by the corporate expenditure ban. The court had upheld that ban in its landmark 1990 ruling Austin v. Michigan State Chamber of Commerce, but reversed itself today with Citizens United.
The ruling will unleash a torrent of corporate and union political spending that may prove hard to trace, warned Scott Nelson, an attorney for Public Citizen, one of several pro-reform advocacy groups that have vowed to rally public support for public financing legislation and for a constitutional amendment to allow corporate spending limits.
"There are weaknesses in the current disclosure regime that this opinion may exacerbate," noted Nelson. Corporations and unions may simply donate money to advocacy groups and associations, for example, which then spend the money on political communications. Political money is easy to hide, he said, "if you start laundering money through one corporation after another."
Existing disclosure requirements, moreover, are now also being challenged on constitutional grounds. The Supreme Court recently agreed to take up a case involving activists in Washington state, Doe v. Reed, who argue that disclosure requirements for those signing a petition opposing same-sex marriage made them vulnerable to harassment. Backers of California's Proposition 8 have mounted a constitutional challenge in that state on similar grounds.
In the future, if an organization can show that disclosure subjected its donors to harassment, "there's a possibility that the court might see that those disclosure provisions, as applied... are unconstitutional," said Hans A. von Spakovsky, a former FEC commissioner and senior legal fellow at the Heritage Foundation.
Not to mention the other lawsuits that are challenging campaign finance restrictions on other fronts. These include Republican National Committee v. FEC, which challenges the constitutionality of the McCain-Feingold soft money ban and the limits on what political parties spend in coordination with candidates; and SpeechNow.org v. FEC, which challenges constraints on independent campaign spending that expressly advocates a candidate's election or defeat.
If the court's Citizens United ruling is any indication, it's the First Amendment advocates in those challenges that will enjoy the upper hand. As Justice John Paul Stevens wrote in the minority's Citizens United dissent: "The majority's approach to corporate electioneering marks a dramatic break from our past."
For reform advocates, the Citizens United ruling may not be a total loss. But future campaigns will unquestionably be less transparent and less regulated than they are today.