More Court Cases to Test Campaign-Finance Limits

January 27, 2010 -- WASHINGTON — With corporations and unions now free to spend unlimited amounts on campaign ads, a series of court challenges coast-to-coast could unravel other campaign-finance restrictions — including limits on contributions to political groups.The next test comes today, when a nine-member federal appeals panel in Washington holds oral arguments to consider whether an independent political group, SpeechNow, should be subject to a $5,000 annual cap on donations from individuals. Three judges on the same court last year voted to nullify those restrictions in a separate case involving EMILY's List, which works to elect women candidates who support abortion rights.

The EMILY's List case was one of a string of decisions that have chipped away at campaign regulations since 2007, culminating in last week's sweeping Supreme Court decision that overturned the ban on the use of corporate and union funds for campaign ads that directly call for the election or defeat of presidential and congressional candidates.

"Opponents of campaign-finance laws have teed up a series of cases to push the court ever further toward deregulation," said Richard Hasen, an expert on election law at Loyola Law School in Los Angeles. "It is paying off."

"I'm certainly emboldened" by the high court's decision, said Steve Simpson, a senior attorney with the Institute for Justice, a libertarian public-interest law firm, which represents SpeechNow. The firm also has challenged in federal court an Arizona law that allows public financing of state campaigns.

Last week's opinion by the Supreme Court "says that the court is very concerned about the implications of campaign-finance laws for freedom of speech," Simpson said.

Other pending cases include:

•A lawsuit by the Republican National Committee that seeks to overturn a ban on unlimited contributions to political parties by wealthy individuals, unions and companies. Currently, no individual can give more than $30,400 a year to a national party committee.

•A California lawsuit that argues publicly disclosing the names of donors supporting a 2008 referendum that struck down same-sex marriage in the state is unconstitutional.

Background

Both cases were filed by James Bopp, a Republican lawyer from Terre Haute, Ind., and frequent challenger to campaign-finance laws. He initiated the lawsuit brought by a conservative group called Citizens United that led to the Supreme Court's sweeping decision Thursday.

In April, the Supreme Court will hear another Bopp case, challenging whether it was unconstitutional for the state of Washington to release the names of people who signed a petition that called for a referendum to overturn the state's domestic partnership law.

Bopp said he is driven by a "personal passion" to defend free speech.

"Our democracy depends upon the vigorous enforcement of the First Amendment against incumbent politicians who insist upon using laws to drive citizens out of the democratic process," he said.

Election law experts, such as Hasen and University of Texas government professor Brian Roberts, say the change in the court's composition has given fresh hope to groups that oppose limits on campaign spending.

Justice Samuel Alito, who joined the court in 2006, sided with a five-member majority in last week's opinion. His predecessor, Justice Sandra Day O'Connor, sided with four other justices in 2003 to uphold the central provisions of a sweeping campaign-finance law Congress approved in 2002.

"The climate on the Supreme Court is different, and people like James Bopp see the opportunity to recast campaign-finance legislation," Roberts said. "The big question is how far the court is willing to go."

Fred Wertheimer of the watchdog group Democracy 21 said advocates of campaign-finance limits intend to fight back in the courts and on Capitol Hill, where they are pushing legislation for taxpayer funding of congressional elections. Other bills under consideration include a measure requiring corporate executives to appear in any ads they fund.

"This a political battle that is ongoing," Wertheimer said, "and the fact that the court made a disastrous and irresponsible decision is not going to stop us from being aggressive in pursuing our goals."

Courts chip away at limits

Recent court rulings have eroded federal campaign-finance limits:

2007 | Wisconsin Right to Life v. Federal Election Commission (FEC) | Supreme Court allows labor, business and other groups to run issue ads that mention candidates by name in the final days before an election, a practice that had been outlawed under a 2002 campaign-finance law.

2008 | Davis v. FEC | Supreme Court strikes down the so-called millionaire's amendment, which allowed federal candidates to raise three times the legal limit if they were competing against wealthy candidates bankrolling their own campaigns.

2009 | EMILY's List v. FEC | A three-judge panel of a federal appeals court rules to allow non-profits to raise unlimited amounts of money to independently support or oppose federal candidates. That strikes down a Federal Election Commission rule that imposed a $5,000 cap on what individuals could give to politically oriented non-profits, such as EMILY's List, which supports female candidates who favor abortion rights. A full appellate court will take up a similar case this week.

2010 | Citizens United v. FEC | Supreme Court allows corporations and unions to tap their treasuries to spend unlimited amounts on campaign ads that call for the election or defeat of federal candidates.