Recent court decisions and FEC rulings have chipped away at laws designed to rein in campaign spending by independent groups and wealthy individuals. And the evidence is mounting that the trend is toward lifting restrictions altogether.
Earlier this week, the FEC approved an advisory opinion allowing a political consulting firm to collect funds from limited liability companies for advertising that would advocate the election or defeat of federal candidates, reports Roll Call. This past summer, William McGinley, a Republican campaign finance lawyer from Patton Boggs, asked the FEC whether his client, Black Rock Group, would be permitted to raise money for independent expenditures without being classified as a political action committee. The decision in favor of Black Rock is expected to encourage wealthy individuals to join like-minded donors in supporting or opposing candidates in next year's elections.
What made the Black Rock case more interesting was that on Sept. 18, a federal appeals court ruled the FEC cannot restrict independent political spending by nonprofit groups or political committees. The case, Emily's List v. Federal Election Commission, upheld First Amendment rights for section 527 groups and others to raise and spend money to try to influence elections as long as they don't coordinate their efforts with candidates or political parties, reported The New York Times.
The appeals court decision dovetailed, in turn, with the prevailing mood in the recent Supreme Court rehearing of the Citizens United v. Federal Election Commission case, in which many (perhaps a majority) of justices sounded ready to remove restrictions on political ad spending by corporations and labor unions. Check out the Associated Press story on the rehearing.
Historically, the Supreme Court has held that the only justification the government has for restricting political donations is to prevent corruption, either actual bribery or the appearance of wrong-doing. The courts seem to be growing impatient with preemptive strikes against dishonesty.
Where will that lead us? It's possible that the U.S. "is moving toward a deregulated federal campaign finance system, where money flows freely and perhaps only disclosure laws remain," observed Loyola Law School Professor Richard L. Hasen in a recent post on ElectionLawBlog.org. He calls this outcome, which would also involve the elimination of limits on PACs and political party contributions, "The Campaign Finance End Game."
What would such a system look like? The conventional wisdom is that billionaires, big corporations and unions would dominate political advertising and have a disproportionate influence over candidates and public policy. The rich and powerful could become richer and more powerful. But several other outcomes are also possible:
• As traditional media outlets disappear, will the ability to make huge TV advertising buys matter as much? Will grassroots campaigns via social media networks come to dominate political marketing?
• As the public becomes inundated with political advertising on websites, broadcast media, print publications - and even on their mobile phones - will voters eventually tune it all out?
• Will disclosure laws make individuals and groups think twice before funding a controversial campaign?
• Will the public - heaven forbid - learn to become smarter shoppers of political information? Will all the fact-checking websites enable voters to find out quickly whether a well-funded negative campaign is being honest?
Hasen argues that "the unlevel playing field awaits." Agree or disagree? Click here to share your opinion.
