Being a campaign finance reformer in the era of Citizens United is good for job security and bad for one’s sense of personal achievement. Most people agree that the need for sweeping reform is greater than ever and most people fear that it’s harder than ever to achieve. “Most people” are right.
And as if Congress and the President were not a tough enough audience already in the era of billion-dollar, incumbent-dominated campaigns, the Supreme Court, by a narrow majority, has repeatedly shown an activist zeal for striking down hard-won reforms of the past. All that’s not to mention the perpetual partisan deadlock at the onetime election law watchdog, the FEC.
Which is why a week of back-to-back victories for campaign finance reform, however modest, is a step worth marking on the long road back to democratic accountability in America. In a pair of decisions each at the Supreme Court and FEC this week, existing campaign reforms were reaffirmed and a pathway to more comprehensive reforms in future was acknowledged by the Court.
First, in a long-awaited Supreme Court decision Monday on public funding, a 5-4 majority struck down a narrow provision of Arizona’s landmark Clean Elections law, which the “triggered” matching funds to publicly funded candidates who are outspent by private money. On the surface, this may seem like a defeat, but — crucially — the Court’s ruling left unquestioned the constitutionality of public funding writ large. In fact, Chief Justice Roberts, in his majority opinion, even went out of his way to say that nothing in the narrow decision should be interpreted as foreclosing public funding.
While the majority’s wrongheaded decision in the Arizona case will cause some consternation for reformers in that state, simple fixes to the “trigger” provision are available and more than a dozen other public funding states and municipalities remain uneffected. More important still, the push for public funding of federal elections is, if anything, bolstered by the Court’s conclusion that reforms cherishing and expanding free speech–rather than more incremental, limits-based reforms–is the clear path forward.
In a second fortuitous act this week, the Supreme Court denied cert in a separate public funding challenge to Connecticut’s model Citizens Election Program. In refusing to take the case, the high court cemented a lower court ruling upholding the constitutionality of a system that has seen three-quarters of state legislators and all statewide officials elected without accepting a dime in special interest money.
Downtown at the FEC, a pair of decisions on Thursday provided surprising reinforcement to existing campaign finance regulations. First, in a rare unanimous decision, the three Republican and three Democratic Commissioners denied a request from the new crop of partisan “Super PACs” to allow political candidates to raise unlimited funds on behalf of such entities, which are supposed to remain independent of federal candidates under existing law. The decision averted a major new loophole in the McCain-Feingold ban on solicitation of unlimited soft money by candidates and officeholders on behalf of the parties. While far from sufficient to stem the tide of unlimited corporate and union “independent” spending in elections, the decision amounts to an unusual show of respect for existing law from an otherwise impotent and highly partisan FEC.
Finally, in a second rare show of bipartisan agreement, the FEC granted comedian Stephen Colbert a narrow media exemption in response to his high-profile request, allowing him to promote his Super PAC only on his show. The decision averts a major potential loophole, whereby media corporations could have granted unlimited in-kind support to politician-pundits who appear regularly on the air. Instead, it upholds the century-old ban on direct corporate contributions to candidate campaigns.
To be sure, campaign finance reform will not be won through occasional concessions at the Supreme Court or the FEC. It will take a movement of the American people demanding change from Congress. But when those bodies which interpret and enforce the law are respectful of its meaning and intent, and mindful of the directions it must take, patriots and reformers take heart.
Photo Credit: thelastminute
