CQ POLITICS NEWS – CAMPAIGN FINANCE
Jan. 21, 2010 – 7:21 p.m.
Campaign Finance Decision Leaves Democrats With Anger, but Few Viable Options
By Keith Perine, CQ Staff
Outraged congressional Democrats blasted the Supreme Court’s landmark campaign finance decision Thursday, calling it a blow to the American political system, and they vowed quick legislative action to counter it.
But lawmakers likely have few legally or politically viable options to respond to Thursday’s 5-4 ruling, which concluded that it was unconstitutional, on free-speech grounds, to prohibit corporations and labor unions from directly spending money to support or oppose candidates for public office.
“The Roberts court has turned back the clock on our democracy by over a century,” said Sen. Charles E. Schumer , D-N.Y.
President Obama also weighed in, saying the ruling gives special interests and lobbyists even more power in Washington while undermining the influence of average Americans.
“It is a major victory for Big Oil, Wall Street banks, health insurance companies and the other powerful interests,” Obama said.
The Democrats appear ready to use the court’s ruling to mount a broader election year populist attack on corporate influence in government. House Speaker Nancy Pelosi , D-Calif., echoed Obama’s language in her statement: “With today’s ruling, the voices of average Americans could be drowned out by Wall Street banks, Big Oil, health insurance companies and other special interests.”
Schumer, who chairs the Rules and Administration Committee, said his panel would schedule hearings to explore legislative responses, but he declined to discuss specific proposals. Obama said his administration would consult with Democratic and Republican congressional leaders “to develop a forceful response to this decision,” adding, “The public interest requires nothing else.”
House Majority Leader Steny H. Hoyer , D-Md., pressed for a bipartisan response to the ruling. “Congress has no choice but to act,” he said in a statement. “This is a chance for Democrats and Republicans to work together and restore democracy to the people.”
The Supreme Court’s decision in Citizens United v. Federal Election Commission overturned its 1990 ruling, in Austin v. Michigan Chamber of Commerce, that had upheld limitations on direct corporate spending to support or oppose candidates. It also overturned part of a 2003 decision in McConnell v. Federal Election Commission — specifically, the restrictions on corporate and union spending close to elections that are part of the Bipartisan Campaign Reform Act of 2002 (PL 107-155), commonly known as McCain-Feingold, after its Senate authors.
The court did not void the disclaimer and disclosure regulations in McCain-Feingold, however.
“When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” Justice Anthony M. Kennedy wrote for the majority, which included the other members of the court’s conservative wing — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. , Antonin Scalia and Clarence Thomas . “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
Some Democrats are backing bills — sponsored in the House by Connecticut Democrat John B. Larson (
But Larson acknowledged Thursday that his proposal would not directly blunt the Supreme Court’s ruling, and he signaled that he has not settled on how his plan would be funded.
Wisconsin Democrat Russ Feingold , a co-author of the 2002 law, called the court’s decision ”a terrible mistake.”
“Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president,” he said. “Ignoring important principles of judicial restraint and respect for precedent, the court has given corporate money a breathtaking new role in federal campaigns.”
His collaborator on the campaign finance law, Arizona Republican John McCain , issued a relatively tepid response.
“I am disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions,” McCain said in a statement. “However, it appears that key aspects of the Bipartisan Campaign Reform Act (BCRA), including the ban on soft money contributions, remain intact.”
Republicans generally hailed the ruling, saying the 1990 decision that the court overturned had put the government in the position of picking winners and losers in political speech.
Rep. Chris Van Hollen of Maryland, chairman of the Democratic Congressional Campaign Committee, said the decision would “open the floodgate if left unchecked and unchallenged.”
Because the court ruled on constitutional grounds, however, the Democrats have few legislative options to mitigate the decision before the November midterm elections.
Still, they are eyeing several proposals. One of them would put new conditions on federal funds that go to corporations, in a bid to keep corporate election spending down. But even if likely GOP opposition to that idea could be overcome, the current Supreme Court would not look favorably on a congressional attempt to use the public purse to restrict the very activity — corporate spending around elections — that the court had just found to be constitutional.
Democrats are also mulling legislation that would require a majority of a corporation’s shareholders to approve any of its election-related spending. But their chances of passing such a bill, particularly in an election year, are slim.
“It would be very tough for Congress to craft a law that imposes any limits” on for-profit corporations or union spending in federal elections in the wake of the decision, said Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles.
Hasen said the legality of one aspect of the proposed public financing system, a public match for certain small contributions, was called into question by the court’s 2008 decision in another campaign finance case, Davis v. Federal Election Commission.
In any case, whatever legislation Democrats decide to write is unlikely to make it through a bitterly divided Congress.
Senate Minority Leader Mitch McConnell , R-Ky., was the plaintiff in the 2003 case and was a party siding with the plaintiff in the current case.
“With today’s monumental decision, the Supreme Court took an important step in the direction of restoring the First Amendment rights of these groups by ruling that the Constitution protects their right to express themselves about political candidates and issues up until Election Day,” he said.
Theoretically, Democrats could propose a constitutional amendment on the subject. But such a proposal would have no hope of garnering the requisite two-thirds vote in both chambers in order to be sent to the states for ratification.
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