The one-year anniversary of the Supreme Court’s landmark Citizens United v. Federal Election Commission ruling has generated lots of noise in recent days, from protesters on Capitol Hill and pundits and lawyers sparring over its real impact.
But don’t be surprised if President Obama declines to weigh in, particularly in his State of the Union speech. Last year, Obama’s gibe that the high court’s ruling to toss out limits on corporate and union campaign spending would “open the floodgates for special interests” became one of the most talked-about lines in his annual address to Congress.
This wasn’t just because Justice Samuel Alito visibly mouthed “not true” from his seat in the House chamber. It was also because Obama, and Democrats on Capitol Hill, had seized on special-interest money as a campaign issue. Back then, bashing corporations suited Obama’s political and policy agenda, and Democrats were busy drafting a post-Citizens United bill that would have shed light on corporate campaign spending.
This year, however, Democrats may well step off the high road. Obama’s shift toward the center pushes political money reforms further to the back burner. Even last year, Obama ignored calls from reform advocates to overhaul the presidential public-financing system and fill key posts at the Federal Election Commission.
And the Democrats’ bill to toughen up campaign reporting requirements is all but forgotten. The so-called Disclose Act stands no chance in the GOP-controlled House. If anything, House Republicans will push to deregulate campaign spending still further. They’ve signaled plans to defund the presidential public-financing system. Rep. Dan Lungren, R-Calif., the new chairman of the House Administration Committee, has said that the ban on direct corporate campaign contributions should also be scrapped.
Democrats, swamped by GOP-friendly independent expenditures in the midterm, are debating internally whether to assail Republican tactics or emulate them. The party line is that Democrats will push for fixes, which would include possible hearings or litigation to spotlight their allegations of GOP abuses. But Democrats acknowledge that liberal donors may well seize new opportunities to exploit Citizens United.
“I’m sure that there are going to be groups allied with Democrats that spend money in these campaigns in a way they couldn’t before Citizens United,” said Rep. Chris Van Hollen, D-Md., the former Democratic Congressional Campaign Committee chairman. “But my hope would be that they will disclose.”
Former Rep. Dan Maffei, D-N.Y., who narrowly lost reelection last year thanks in part to a wave of outside spending by pro-GOP players, was more blunt.
“Both parties are foolish if they don’t go outside of that structure to raise large amounts of money,” said Maffei, a distinguished senior fellow at the centrist Democratic think tank Third Way. He added that he endorses public financing as the only way to keep lawmakers beholden to voters rather than big donors.
“It’s now about raising so much money that no individual can do it, and even the party establishment can’t do it,” Maffei said. “You’re going to have to go to corporate and organizational entities to do it. And that’s really scary.”
Activists on the left warn Democrats to resist imitating such groups as American Crossroads, the corporate-backed conservative powerhouse. They point to polls showing public disgust at special-interest money, and they have mounted grassroots campaigns for a constitutional amendment to limit corporate spending and for full public financing of congressional campaigns.
The real problem with Citizens United, critics argue, is that it drove corporate spending underground. Almost half, 46 percent, of the close to $300 million that outside groups spent independently in the last election came from undisclosed sources, according to Public Citizen. The ruling freed up both corporations and nonprofits to spend more aggressively, helping make tax-exempt groups, which face virtually no disclosure requirements, a magnet for big money.
That’s not what the Supreme Court had in mind when it rejected the ban on corporate and union spending. Indeed, the high court strongly affirmed existing disclosure rules and cited them as a justification for deregulating outside expenditures.
Defenders of Citizens United have hailed it as a triumph for free speech and democracy. Less noticed has been a flurry of conservative position papers arguing that anonymity is a good and healthy thing, and that disclosure rules violate privacy and should also be rolled back.
It’s a bold, pro-secrecy position that contradicts Republicans’ erstwhile argument for full disclosure coupled with deregulation. Even this deregulatory Supreme Court has not gone that far. As Justice Anthony Kennedy wrote in Citizens United, “The public has an interest in knowing who is speaking about a candidate shortly before an election.”
It’s easy to see why Obama may be tired of talking about campaign-finance reform. But the post-Citizens United world of big money and big secrecy poses risks to both parties. Democrats who go too far down that road may lose points with allies and voters--and end up wishing Obama had done more to fix the political money mess.
This article appears in the Jan. 24, 2011, edition of National Journal.