Roberts Court rulings on campaign finance reveal shifting makeup, forceful role

By Robert Barnes
Washington Post Staff Writer
Monday, November 1, 2010; 3:02 PM

RIVER FALLS, WIS. - Sometimes, it takes years to see the impact of a Supreme Court decision on American life, and sometimes a ruling lands with an explosion.

The Roberts Court's game-changing decisions on campaign finance reform have been both.

Almost from the moment Chief Justice John G. Roberts Jr. joined the bench five years ago, the court's conservatives have acted systematically on their deep skepticism of campaign spending restrictions. They have repeatedly questioned the ability of Congress to regulate the role of wealth and special interest involvement in elections without offending the First Amendment guarantee of unfettered political speech.

The court's rulings are being felt this year everywhere voters go to the polls. But they have special resonance in Wisconsin, where Sen. Russ Feingold, the Democratic author of the McCain-Feingold campaign finance reform act, has seen not only his legislative legacy but his Senate career endangered.

"I've always been a target in this stuff," Feingold said during a recent swing through the western part of his state. "And this year, I'm getting the full dose: over $2 million in these ads [criticizing him] that used to not be legal."

The court's rulings on campaign finance have assured it the most prominent role in the country's elections since its polarizing decision 10 years ago in Bush v. Gore. They also provide perhaps the most striking example of how the Roberts Court differs from its predecessor.

In decision after decision, a slim majority of the court has cut back major parts of McCain-Feingold and other campaign-spending restrictions. The capstone came in January, with its 5 to 4 decision in Citizens United v. Federal Election Commission that rewrote decades of law and said corporations and unions could spend unlimited amounts to support or oppose candidates.

The court has declined two opportunities to expand on the Citizens United ruling, however. On Monday, the court declined to hear a case that sought to loosen the disclosure requirements on groups that spend money independent of candidates. Last summer, it chose not to hear a Republican challenge of limits placed on contributions to political parties.

It's not surprising, Feingold told a small group of supporters recently on the windswept campus of the University of Wisconsin at River Falls, that outside groups are gunning for him. He pointed to a recent piece in Washingtonian magazine that divided the Senate into categories.

"I wasn't fourth, third, second: I was the number one enemy of Washington lobbyists," he said, adding, "A Senate seat can't be bought; it has to be earned. We will never let the special interests drown out the voices of the people."

Polls show Feingold in serious trouble in his reelection fight with Republican businessman Ron Johnson. Johnson has invested more than $8 million of his money in the race, and although the two campaigns are competitive with each other financially, outside groups have spent nearly $3 million on Johnson's behalf.

Feingold said he has requested that outside groups stay out of the race, and a Washington Post analysis shows 92 percent of the outside spending has supported the Republican. The impact has been obvious: The Wesleyan Media Project said there have been more commercials about the Senate race in Wisconsin than in any state outside Nevada, where Senate Majority Leader Harry M. Reid (D) is running for reelection.

This year's elections have seen a tidal wave of campaign spending by outside groups, many of whom do not disclose their donors. That has more to do with disclosure decisions by the FEC and the Internal Revenue Service than with the specifics of the Citizens United decision, experts say.

But critics of the ruling say it provided a psychological boost for corporate executives nervous about the legality of their role in supporting or opposing candidates. The midterm elections have also shown the justices' lack of familiarity with the realities of campaign fundraising and disclosure laws, they say.

Trevor Potter, a former FEC chairman who was the attorney for Sen. John McCain's presidential campaigns, said there was already a "boatload of spending" by corporate interests in elections before Citizens United. But the ruling made clear that there were no legal obstacles to their participation, he said.

"Lawyers understood before, but boards of directors and CEOs are cautious," said Potter, now president of the Campaign Legal Center, which supports campaign finance reform. "Citizens United put a Supreme Court Good-Housekeeping-seal-of-approval on corporations being allowed in elections.

"After Citizens United, it was almost like their patriotic duty."

The debate over the decisions echoes that of the ideologically divided justices themselves.

Justice John Paul Stevens, now retired, made Citizens United the last great dissent of many he wrote in 35 years on the court.

"While American democracy is imperfect," Stevens wrote in his 90-page opinion, "few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics."

Justice Anthony M. Kennedy wrote the majority opinion, but colleague Antonin Scalia took up his pen to specifically answer Stevens.

"To exclude or impede corporate speech is to muzzle the principal agents of the modern free economy," he wrote. "We should celebrate rather than condemn the addition of this speech to the public debate."

A shift on the court

Another former FEC chairman, Bradley Smith, is so celebratory that he has to guard against being "triumphal."

Smith and others founded the Center for Competitive Politics to oppose "so-called reformers' efforts to limit campaign contributions, taxpayer funded political campaigns, the 'fairness doctrine' in talk radio and other limits on citizens' ability to support the candidates and causes of their choice," according to the group's mission statement.

Because of the Supreme Court, "I have to say we've made much more progress than I thought we would in five years," Smith said.

The court's foray into that area was something of a surprise, too, but was powered by challenges to the law inspired by Smith's group, the Institute for Justice, the James Madison Center and others.

The Supreme Court in 2003 found that the campaign finance act - formally, the Bipartisan Campaign Reform Act of 2002 - met constitutional standards. The vote was 5 to 4. But that balance shifted when Samuel A. Alito Jr. replaced Sandra Day O'Connor, who had been in the majority.

In quick order, the court said it would consider whether specific applications of the law might pose constitutional problems in certain circumstances. It found one.

In Wisconsin Right to Life v. FEC, it gutted the law's restrictions on groups running "issue" ads mentioning a specific candidate just before an election. The previous court majority had said such ads were simply a foil for getting around restrictions on express advocacy of a candidate.

With Roberts writing the opinion, the majority - the chief justice, Alito, Scalia, Kennedy and Justice Clarence Thomas - said such restrictions were warranted only if there was no other understanding of the ad except as a plea to vote for or against the candidate.

The same five justices a year later struck the law's "millionaire's amendment," which increased contribution limits for candidates who faced wealthy, self-funded opponents.

Then in Citizens United, which concerned a conservative group's efforts to advertise and air a scathing documentary about Hillary Rodham Clinton, the court reached beyond the narrow question presented. It asked attorneys for the group and the government to weigh in on whether it should overturn its precedents forbidding corporations and unions from using their general treasuries to support or oppose candidates.

Columbia University law professor Nathaniel Persily said the moves offer a greater lesson on how Roberts influences the court.

"Campaign finance is just one area where Chief Justice Roberts has strung together a series of minimalist decisions that eventually have a revolutionary effect," Persily said.

"The significance of each incremental step is only realized after the fact, when the last shoe drops."

Roberts and Alito joined the three justices who already thought that McCain-Feingold and the corporate ban were unconstitutional, and delivered a sweeping ruling that they said was more true to the court's other decisions on how the First Amendment protects political speech, no matter the speaker.

For instance, much has been made of the ruling that corporations have the same right to political speech as individuals. But the court had made a similar ruling regarding a corporation's ability to spend money to influence a referendum.

Congress is right to be concerned about the appearances of corruption orquid pro quo corruption that could accompany expenditures by corporations and unions, Kennedy wrote. "The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule."

Disclosure-rule issues

Kennedy said there were safeguards in place for worries about unfettered political activity by corporations and unions: disclosure.

"The court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech," he wrote.

And he said it was easier now than at the time McCain-Feingold was passed.

"With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable," Kennedy continued, saying such "transparency" allows voters to evaluate the speech and the messenger.

But real life has revealed problems with that approach. Critics of the ruling said Kennedy and the majority did not address rulings by the FEC and IRS, which govern the myriad political groups and nonprofit organizations active in elections, that they need not always disclose their donors.

Fred Wertheimer, the longtime campaign finance watchdog who is now president of Democracy 21, estimates that groups will spend as much as $200 million during the midterm elections without disclosing the source of the money.

And after the ruling, with unanimous opposition from Republicans, including McCain, the Senate did not toughen disclosure requirements .

To McCain and Feingold, the court's actions on campaign finance reflect both naivete and judicial activism.

McCain was livid after oral arguments in the Citizens United case, when Scalia said he did not think he was being "excessively cynical" to think Congress incapable of passing campaign finance legislation that did not simply protect incumbents.

"Not only was Justice Scalia's statement excessively cynical," McCain said in a speech on the Senate floor, "it showed his unfortunate lack of understanding of the facts and history of campaign reform."

But Smith said the independent spending in many cases has helped challengers who otherwise would be outspent by incumbents. "It has done just what I thought it would: level the playing field and put more races into play," he said.

One of those is in Wisconsin.

Feingold, first elected to the Senate in 1992, does not blame money for his current political woes; a hurting economy and resurgent Republicans are making Wisconsin a politically tough terrain for Democrats this year. And he predicts the real impact of Citizens United will be in the 2012 presidential campaign.

He also notes that the main goal of McCain-Feingold - to stem the flow of unlimited contributions to the political parties - remains the law. The court at the end of last year's term decided not to hear a challenge about "soft money."

In the Citizens United decision, Roberts and Alito wrote separately to say they respected precedent, as they had testified to in confirmation hearings. But they said they had to "balance the importance of having constitutional questions decided against the importance of having them decided right."

Feingold does not buy it.

"Frankly, as far as I'm concerned, they completely disregarded their oaths with regard to those issues," he said. "Which is a serious accusation to make about Supreme Court justices. But I regret to say I think that's what they did."

Since John G. Roberts Jr became chief justice five years ago, focus has been on the Supreme Court's changing makeup and shifting ideology. In the coming months, The Washington Post will examine the real-world consequences of the court's rulings in communities across the nation.

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