hot topic
STATE CAMPAIGN FINANCE LAWS
by Jennifer Ginn In the past, a casual observer might have equated court cases involving campaign finance law to summer thunderstorms. They popped up frequently, occasionally caused some brief concern about consequences and then quickly faded away. Darrin Lim, conference co-chair of the nonprofit, nonpartisan Council on Governmental Ethics Laws and partner with the law firm Nielsen Merksamer in California, thinks the U.S. Supreme Court cases regarding campaign finance law in the past four years are a lot more serious than just a thunderstorm. “Citizens United and McCutcheon are earthquakes in campaign finance,” Lim said. “The reason they’re earthquakes is they wake everyone up, they remind everyone that it’s important to be present and aware of the current landscape. The landscape has definitely changed as a result of these two Supreme Court decisions.”
A Changing Landscape
Paul S. Ryan, senior counsel to The Campaign Legal Center—a nonprofit, nonpartisan organization that offers analyses of issues dealing with campaign finance and elections, political
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communications and government ethics—said recent Supreme Court cases go back to regulations laid out in the Bipartisan Campaign Reform Act of 2002, otherwise known as the McCain-Feingold Act. The bill tackled what is known as electioneering communications, which corporations and unions were banned from funding. Courts had been using the expressed advocacy test. That test raised the question: Did the ad tell viewers to vote for or against a particular candidate? “It was easy to get around,” Ryan said. “You could simply refrain from including language in your political ad along the lines of ‘vote for’ or ‘vote against’ and, instead, simply run ads that said, ‘Candidate Smith beats his wife. Call candidate Smith and tell him why he shouldn’t be a wife beater.’” Ryan said the McCain-Feingold Act forbade corporations or unions from using their general fund treasury to pay for electioneering ads. The bill also said anybody paying for these types of electioneering communications had to file a disclosure report if they spent more than $10,000; the disclosure includes the name and address of all contributors of $1,000 or more. The new law was challenged almost immedi-
ately. The Supreme Court in 2003, in McConnell v. FEC, upheld all of the bill’s provisions. Ryan said things started changing in a 2007 Supreme Court case—Wisconsin Right to Life v. FEC—when the definition of what constitutes an electioneering communication began to loosen. “I think all the attorneys paying attention to that decision understood that Chief Justice (John) Roberts, in his eyes, all these restrictions on corporations paying for these ads were vulnerable to constitutional challenge,” Ryan said. “We kind of saw the writing on the wall in 2007.” Then in 2010, the Supreme Court in Citizens United v. FEC struck down much of the rest of McCain-Feingold. “The court in Citizens United held that corporations and unions cannot be restricted in their political spending,” Ryan said. “They have a First Amendment right, they are persons under the First Amendment and they have the right to make unlimited political expenditures.”
