Remember campaign finance reform? A long time ago (way back in 2002), in a political world far, far away, Democrats and insurgent Republicans defied congressional rulers to pass the so-called McCain-Feingold law. It was signed, reluctantly, by a holding-his-nose President Bush. And then, the following year, the Supreme Court substantially upheld it in McConnell v. FEC. Cue the celebrations among the forces of do-goodery and roll the credits—this film's done.
But like any good story, it's getting a sequel. You could call the first round Campaign Finance Wars (Arizona Sen. John McCain compared himself to Luke Skywalker, and archnemesis Mitch McConnell, the Kentucky GOP senator whose name graces the key 2003 case, embraced the sobriquet Darth Vader). Get ready for the Empire Strikes Back. Quietly, but with gathering force, opponents of campaign finance laws have laid siege to the election funding system that has been constructed to combat the corrupting influence that money can have in politics. Not simply recent reforms like the prohibition on using nonregulated cash (known more commonly as "soft money") to influence campaigns but also more established rules like strictures against corporations and labor unions using their funds and limits on coordinated spending between parties and candidates. I have a bad feeling about this.
There have been two critical, related shifts in the campaign finance battlefield. The first was Sandra Day O'Connor's 2006 retirement. O'Connor was one of the coauthors of McConnell. But her replacement, Samuel Alito, is more skeptical of such laws. Now, says Monica Youn, a counsel at New York University's liberal Brennan Center for Justice, "opponents of campaign finance reform are seeing an opportunity in the Roberts court to deregulate, basically, campaign finance reform."
Second, no doubt spurred by the fact of a less reform-friendly court, opponents are attacking campaign finance laws in a new way. The full-frontal assault having failed with McConnell, critics shifted to chipping away at different portions of the laws. But even that approach has evolved recently, increasingly encompassing shots at the underpinnings of the campaign finance regulatory system. "While in the beginning it might have been 'death by a thousand cuts,' we're going beyond cuts now to outright blows," says Tara Malloy, an attorney with the Campaign Legal Center, a pro-reform legal institute.
These cuts and blows are coming in both federal and state courts, with the suits adding up to a serious threat. The cases often avoid head-on challenges to the laws, instead arguing that they are unconstitutional "as applied" in specific situations, allowing the high court to vitiate precedents without explicitly overturning them.
In the 2006 case, Randall v. Sorrell, the Roberts court struck down state limits in Vermont on how much could be contributed to or spent by a campaign. It was a minor decision, but it signaled the court's newly conservative approach. The following year, in FEC v. Wisconsin Right to Life, the court gutted a McCain-Feingold provision prohibiting corporate cash from being used to fund certain kinds of ads 60 days before an election campaign. And the following year, in Davis v. FEC, the court knocked out another McCain-Feingold provision, which would have raised federal contribution limits for candidates who were facing extravagantly self-funded opponents.
Earlier this month, in a case brought by the liberal campaign group EMILY's List, a federal appeals court struck down a Federal Election Commission rule prohibiting how much soft money independent groups—think Swift Boat Veterans for Truth and MoveOn.org—can raise and spend on things like ads and mailings.
And the stakes only get higher. On September 9, the Supreme Court took the unusual step of holding a second hearing in the case Citizens United v. FEC. The justices focused on whether the court should overturn the long-standing prohibition on corporations and labor unions using their funds to influence campaigns. With three justices on the record as believing the ban should be knocked out and four defending it, all eyes were on Roberts and Alito. Campaign finance reform advocates tried numerous arguments to sway the conservative duo, veteran reporter Lyle Denniston wrote on SCOTUSBlog, but "none of those arguments seemed to appeal."