The way conservatives tell it, President Obama’s White House tenure has resulted in a near-death experience for federalism. A tidal wave of Obama-inspired federal regulation has turned autonomous states into captives of the national bureaucracy, a perversion, they say, of the Constitution and the Founders’ vision of the “laboratories of democracy.”
States’ rights, then, are of paramount concern for conservatives—except, it turns out, when the discussion turns to campaign finance and another principle near and dear to their hearts: free speech. As a case before the Supreme Court this month demonstrates, some on the Right might profess to love the 10th Amendment, but they’re willing to push it aside to embrace the First—at least in this context.
The case, American Tradition Partnership, Inc. v. Bullock, centers on a century-old Montana law that prohibits corporations from spending money on political campaigns. The U.S. Supreme Court appeared to have rendered the state law unconstitutional in 2010 in its ruling in Citizens United v. Federal Election Commission that allowed unlimited corporate and union spending on elections; but the Montana Supreme Court unexpectedly upheld the ban last year.
The state judges contended that Citizens United does not apply to Montana’s anti-corruption measure—arguing, in effect, that the state should be able to determine how to regulate campaigns within its borders. Supporters of the state court’s decision, according to Rick Hasen, a campaign finance expert at the University of California (Irvine) School of Law, have framed it as a defense of federalism, a tactic calibrated to appeal to the Supreme Court’s majority conservative bloc.
Typically, conservatives rally around that type of argument, in determining how to educate the nation’s children, say, or to provide health insurance for the needy. But in this case, they appear united in their conviction that the Montana court was dead wrong. “I’m a big believer in the 10th Amendment,” said Hans von Spakovsky, a senior legal fellow at the Heritage Foundation and a former member of the Federal Election Commission. “But the power and sovereignty of state government is limited by the Bill of Rights, just like the federal government’s is.”
Right-leaning legal analysts argue that the campaign finance case is inherently different from other issues that typically elicit cries of states’ rights. Although conservatives contend that state autonomy should trump federal rule, they also say that the rights of citizens should supersede both. “Could a state like Massachusetts have an individual [insurance] mandate? That’s a question not of rights under the Bill of Rights but rather of government powers,” said Brad Smith, chairman of the Center for Competitive Politics and a former FEC chairman. “That’s a fundamental difference.”
Smith and his Republican brethren shouldn’t waste much time worrying. Legal experts of all ideological stripes expect the Supreme Court to strike down the Montana law, maybe as early as this month, even though more than 20 states have filed briefs in support of Montana’s position, contending that Citizens United in its short life has already had an observable, corrupting influence on national politics.
Ruling otherwise wouldn’t necessarily require the Court to reconsider Citizens United wholesale; it could instead carve out some breathing room for states to regulate and still maintain the framework that allows unlimited contributions to outside political groups, corporations, and unions. But because the Court’s composition has not changed since the decision came down, the justices are much more likely to choose the path of least resistance at their June 14 conference: They could merely vote to strike down the Montana law without a hearing.
Even though the possibility that the Court will revisit Citizens United is remote, some Democrats hold out hope that the high court will suddenly change direction. “I don’t think the stakes could be higher,” said Rep. Anna Eshoo, D-Calif. “We have gone back to the excesses of the second Gilded Age in political power.”
She predicts that the Court will reverse itself, a bet against long odds that many others are making these days. Campaign finance reform advocates have been reduced to Hail Mary tactics in the post-Citizens United era, which has seen the mass proliferation of well-funded outside groups change the rules of campaign politics in America.
The Montana case, in fact, might be the most substantive effort to push back against the 2010 ruling—less an indicator of the case’s strength than of how badly liberals have been thwarted both legislatively and legally since the Court handed down the decision. Hasen called it “a disaster from the point of view of people who support reasonable campaign finance regulation. The only way to reverse it is if the Court itself reverses it.”
Because the conservative five-justice majority is liable to steer the high court for the foreseeable future, some campaign finance reformers have begun considering alternative legislative solutions. One popular idea is a federal version of a public-financing system in New York state that matches small-donor campaign contributions with state money. Conservatives, on the other hand, want to increase or remove contribution limits for candidate campaign committees as a way to pull the center of political gravity away from outside groups that can already raise money in uncapped chunks, and back toward entities accountable to the public.
Of course, any legislative push will depend heavily on which party prevails in the presidential and congressional elections. “It’s bubbling up,” Eshoo said. “Time will tell what avenue becomes possible or probable based on what the composition of Congress will be.”
For now, though, while Democrats fretfully anticipate yet another legal defeat in the campaign finance arena, conservatives can enjoy their likely victory. That appears to be a blow to federalism they can stomach.
This article appears in the June 9, 2012, edition of National Journal.