Protecting a lead – Campaign reform and the SCOTUS hedge

In his article in the current issue of the New Yorker, describing the Supreme Court’s machinations in the 2010 Citizens United decision, Jeffrey Toobin informs readers that the attorney for the plaintiff, Ted Olsen, had a specific goal when he was presenting his case to the court in September, 2009. Since this was the case’s second go at the Court, it indicated a majority of justices was looking for a way to do more than rule on the funding for broadcast media campaign ads in the context of the 2002 finance reform law known as McCain-Feingold. It was looking for reasons to overturn the Bipartisan Campaign Reform Act in its entirety.

“Olson could tell… that the Court was leaning his way—heading for a ruling that was far broader than the one he had originally sought,” Toobin writes. So, he says, “Olson argued cautiously, as if protecting a lead.”

Official 2005 photo of Chief Justice John G. R...
Official 2005 photo of Chief Justice John G. Roberts (Photo credit: Wikipedia)

That lead was a major factor in taking the GOP to a sweeping victory in the 2010 elections, and has already played a huge role in this year’s GOP presidential primaries. Indeed, one could argue that Chief Justice Roberts’ Court showed that, in fact, it was not the impartial umpire he claimed it would be during his confirmation hearing. “Umpires don’t make the rules; they apply them,” he famously said, “The role of an umpire and a judge is critical. They make sure everybody plays by the rules.” But if the Citizens United ruling was about making the right call, then Roger “the Rocket” Clemens has nothing to worry about. The Courts’ decision makes it seem as if the umpiring crew conferred, and decided that, for the good of the game, human growth hormone is gear, and better performance is every ballplayer’s right.

Toobin’s article makes it clear that the outcries of “judicial activism” by those who supported the restrictions of McCain-Feingold were more than just sour grapes, more than the tit-for-tat critique of a decision that didn’t go their way. He describes how, after the case was first argued in March, 2009, Roberts wrote a narrow opinion for the majority that Justice Anthony Kennedy broadened, and then Justice Antonin Scalia argued they could broaden it more in a way that would overturn even the most recent precedents, and thus the law itself. It was only then they decided not to issue a ruling in June and, instead, scheduled the case to be re-argued.

Now, more than two years after Citizens United v. F.E.C., lower courts and city councils, state legislatures and even Congress itself are making progress in efforts to restore at least some form of campaign finance reform, mostly through limiting contributions and requiring donors’ names to be revealed – particularly those who contribute tremendous sums to campaigns.

On Monday, the U.S. Court of Appeals, in Washington, declined to stay an order by a lower court that requires making public the names of those who finance election ads, including those who donate to political action committees (PACs). According to an article in the Los Angeles Times:

Pending a September appeal, “groups that run a type of ad known as ‘electioneering communications’ will now have to disclose all of the donations they received since the beginning of 2011, or set up a segregated account to pay for the commercials.

“Electioneering communications are television spots that refer to federal candidates but stop short of advocating for their election or defeat and air within 30 days before a primary and 60 days before the general election.”

This ruling directly affects groups with tax-exempt status, and “there is no question that it complicates the political plans of heavyweight players such as the U.S. Chamber of Commerce and an array of well-financed, conservative, nonprofit groups such as Crossroads GPS and Americans for Prosperity that have taken the lead in a costly air war against President Obama and congressional Democrats. Liberal tax-exempt groups, which spend far less on the type of ads in question, will also be affected,” the LA Times article says.

Although the California State Assembly, on Tuesday,  killed a measure in committee that, according to the LA Times, “would have urged Congress to call a constitutional convention to pass an amendment to limit ‘corporate personhood’ and declare that money does not constitute free speech,” some local governments are moving forward with challenges to Citizens United.

The Daily Northwestern reports that the city council of Evanston, Illinois, voted unanimously, on Monday, for a resolution calling for a constitutional amendment that would reverse many of the unpopular results of the  Supreme Courts’ decision. They were the first in the Land of Lincoln to do so, “join[ing] other municipalities and states that have passed similar resolutions addressing the 2010 decision on the constitutional rights of corporations.” The resolution supports the action of Sen. Dick Durban (D-IL), the state’s senior senator, who is a co-sponsor to legislation that would set such an amendment in motion.

Meanwhile, back in the U.S. Capitol, the man who’s name has become synonymous with campaign finance reform, Sen. John McCain (R-AZ), has come full circle, and is now in negotiations with Senate Democrats to be the first Republican to lend his name to the latest version of the Disclose Act, introduced in March by Sen. Sheldon Whitehouse (D-RI). The bill, as reported in The Hill, this morning:

“would require any group that spends $10,000 or more on election ads or other political activity to file a disclosure report with the Federal Election Commission within 24 hours. Reports would detail the nature of expenditures over $1,000 and reveal the names of donors who give $10,000 or more.

“The legislation would also require that outside group advertisements include ‘stand-by-your-ad’ disclaimers listing the biggest donors.”

The Disclose Act, though, stands little chance of making it through both Houses of Congress – this session, anyway. In the meantime, Politico reports, “With little fanfare, Senate Majority Leader Harry Reid (D-Nev.) and his top lieutenants are crisscrossing the country from the Southwest to the Big Apple, meeting with billionaires, high-level business executives and union leaders in a mad scramble to raise money for Majority PAC — and perhaps save their slim Senate majority.”

Of course, they’re not the only Democrats doing it. But, as long as the umpires are saying it’s okay to juice up, may as well play both sides of the hedge and go for the long ball. The “major scandal” that McCain warned The Hill about can happen later. Maybe then, Karl Rove will replace the Rocket on the witness stand, and it will be a whole new ballgame.


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