The U.S. Supreme Court's landscape-altering ruling in Citizens United v. FEC (pdf) is already triggering aftershocks in some of the dozens of campaign finance-related lawsuits in federal and state courts.
In SpeechNow.org v. FEC, argued before a federal appellate court less than a week after the ruling, the potential impact of the decision dominated questioning in that challenge to limits on independent expenditure committees. In two separate, high-profile cases targeting the federal ban on soft money and a state campaign disclosure law, the courts have ordered supplemental briefing on Citizens United's relevance. And the Supreme Court this term is not yet finished in this area. The justices will hear arguments in April on an appeal involving Washington's petition disclosure law.
Supporters of the decision, which opened the door to independent corporate expenditures in federal elections, contend it will help them in the next key battlegrounds: challenges to the federal ban on soft-money solicitation and spending, disclosure requirements and state public-finance systems.
The high court's 5-4 ruling offers "a wealth of holdings on very important aspects of campaign finance litigation," said James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind. Bopp, who represented Citizens United in the lower courts and in its petition for certiorari at the high court, added the ruling will affect roughly two dozen campaign finance cases being handled by his own firm.
"We expect a whole slew of challenges to what courts always considered constitutionally sacrosanct -- public financing," said Monica Youn of the Brennan Center for Justice.
But even in cases in which the ruling should not be a factor, as in the soft-money challenge, "I think anti-reform advocates will try to make hay," predicted Tara Malloy, associate legal counsel to the Campaign Legal Center. "Certainly reform groups, such as ours, think it should be limited only to cases dealing with corporate expenditures, but anti-reform groups will try to use it in a variety of contexts."
ANOTHER 'CITIZENS UNITED'?
Although SpeechNow is the first case in which a lower court will apply Citizens United, many election litigators see Republican National Committee v. FEC as the next case with the greatest potential to rock the campaign finance world.
The RNC, represented by Bopp, has challenged a provision in the McCain-Feingold campaign finance reform law that prohibits national parties from soliciting, receiving or spending any funds that were not subject to federal contribution limits -- also known as soft money. The RNC has argued it should be allowed to raise soft money for purposes not related to advocating for candidates, such as party-building and redistricting efforts.
"Citizens United was a case that attacked one-half of both McCain-Feingold and the [2003] McConnell decision upholding the law," said Youn, whose organization is an amicus party opposing the RNC. "With the RNC case, they're targeting the other half -- the soft-money ban."
The case was argued last August and is pending a decision in federal district court in Washington. "I think the court has been waiting for the Citizens United decision," said Bopp, adding that supplemental briefing on the ruling will be done by mid-February. The entire soft-money ban, he said, is based on the argument -- rejected in Citizens United -- that independent corporate expenditures have a corrupting influence.
"I think the district court is entitled to strike the soft-money ban on its face, not just as applied to the various activities we wish to do unrelated to federal elections," he said.
His opponents disagree, but they find common ground with Bopp and his colleagues on what the next major confrontation in the states and in federal court will be: campaign finance disclosure requirements.
The Supreme Court signaled that development, said Youn, both when it granted cert in Doe v. Reed on Jan. 15 and also when it forbade the broadcasting of the trial over California's same-sex marriage ban -- Proposition 8.
Doe v. Reed, which likely will be argued in April, is a constitutional challenge to Washington's public-records disclosure law. Protect Marriage Washington and others contend the law violates the First Amendment privacy rights of voters who signed petitions to trigger a referendum overturning the state law allowing same-sex domestic partnerships.
In Citizens United, the justices, voting 8-1, approved the disclosure requirements in the McCain-Feingold campaign finance law after finding no evidence of actual or potential harassment of Citizens United or an unduly burdensome regime.
"Doe falls squarely in that exception -- situations claiming harassment or reprisals," said Malloy. "I don't think the case will be affected by Citizens United, but it will help define the scope of how much disclosure the Supreme Court is willing to wholeheartedly endorse."
IN THE STATES
Another disclosure case, National Organization for Marriage v. McKee, was recently filed in Maine and is a challenge to state public-financing systems.
The Brennan Center has identified four pending cases and is involved in all of them defending the state systems:
Green Party v. Garfield challenges eligibility requirements and the mechanism by which money is distributed to participants in Connecticut's public-financing system. A federal trial court held the system unconstitutional. An appeal is pending decision in the 2nd U.S. Circuit Court of Appeals, which has asked the parties to brief whether the Citizens United decision has any relevance, according to Youn.
McComish v. Brewer also challenges the matching-funds provision in Arizona's public-financing system. A federal trial court on Jan. 20 struck down the provision. The ruling is being appealed to the 9th Circuit. The Institute for Justice, which is co-counsel in the SpeechNow case, brought the Arizona challenge.
WRTL v. Brennan and Koschnick v. Doyle attack the funding mechanism in Wisconsin's public financing of state judicial elections as well as its reporting requirements.
"In some of these cases, the challengers are arguing that the benefit of matching funds somehow deters nonparticipating candidates from speaking," said Youn. "That's an argument the Supreme Court in Buckley v. Valeo specifically rejected. But I think they're trying to relitigate Buckley."
Related package:
Controversy Deepens Over Corporate Rights, 'Citizens United'
