How the U.S. Supreme Court’s Citizens United ruling affects campaigns was the subject of a robust panel discussion in Boston that included a former state chief justice and a former Congressman.
The New England Legal Foundation hosted the panel, titled “Politics, Corporations, and the First Amendment” at the organization’s December 3 CEO Forum. The foundation’s stated mission is to promote the principles of free enterprise, property rights and appropriate limits on government.
Former Massachusetts Chief Justice Margaret Marshall, who retired in December 2010, moderated the panel. Marshall rejoined Boston’s Choate, Hall & Stewart as a senior counsel in January, with plans to work part time.
The panelists consisted of Yale Law School Professor Heather Gerken; Michael Macleod-Ball, chief legislative and policy counsel for the American Civil Liberties Union’s Washington legislative office; Brian Mooney, a recently retired Boston Globe reporter; and Christopher Shays, a Republican member of the House from Connecticut from 1987 to 2009.
The 2010 ruling in Citizens United v. FEC barred the government from restricting independent political spending by corporations and unions.
Gerken, who specializes in election law, constitutional law, and civil procedure, opened the discussion by stating that although Citizens United “did not open the corporate floodgates,” it’s still a pivot point in campaign finance doctrine because of what it said about corruption. “It dramatically cut back on the reasons Congress can regulate.”
She noted that campaign finance regulations don’t necessarily reduce the amount of money in the system but they can change the channels it runs through.
“If you’re really interested in American politics, the game is outside the party,” Gerken said.
Shays said he and three other members of Congress who worked on the landmark campaign finance reform that was the focus of Citizens United “wanted to stop the shakedown of corporations and prevent union money from going in.”
He, Senator John McCain (R-Ariz.), former Senator Russell Feingold (D-Wis.) and former Representative Martin Meehan (D-Mass.) were principal sponsors of the Bipartisan Campaign Reform Act of 2002, better known as the McCain–Feingold Act, which was enacted in March 2002.
Macleod-Ball, who supports retaining rules that allow for anonymity of donors to issue-based organizations, said one of the problems is that many purportedly independent organizations aren’t really independent of campaigns. “[That] doesn’t suggest we should be restricting the flow of money,” he said.
Macleod-Ball said the test really should be whether independent expenditures by associations really and truly are independent. “There has been no guidance from Congress” and the “concept of anonymous speech lives in America today.”
Concerning the ACLU’s comments on anonymous speech for issue ads, Marshall said “My reaction is, give me a break.”
“The line, whether something supports or opposes a candidate, you’re going to have the government decide that,” Marshall said.
In a later interview, Macleod-Ball said that it’s possible to identify most ads that support an issue or candidate without needing government involvement. “The important principal is to preserve this notion of anonymous speech when it’s issue advocacy,” Macleod-Ball said.
Mooney said it’s really a regulatory problem because the Federal Election Commission is a custodial agency that doesn’t regulate.
Because there’s no executive branch regulation, “it’s a problem that eventually falls to Congress,” Mooney said.
Gerken said she doesn’t mind a lot of money coming into the campaign system, “but it’s not going to parties; it’s going to shadowy organizations that spring up around elections and then disappear.”
“I’m happy to have a lot of money swishing around, but I’d like to see some accountability,” Gerken said.
Shays responded to an audience member’s question about whether removing all the caps on direct donations to candidates would “solve the dark money problem” and ultimately reduce amount of negative ads.
Shays said that system creates it’s own huge problem. “You will have a shakedown of the business community and people with money” by members of Congress,” he said.
Another audience member asked whether removing the limits on party donations would be a better approach.
Gerken said she didn’t think that would make much difference because “right now candidates and parties are so tightly coordinated.”
Macleod-Ball said it’s important for people to contribute to an organization that’s right on point with their belief system.
“In this very, very imperfect world, that is clearly a better solution [than] to give more money to parties,” Shays said.
Gerken, who said she was a senior adviser on President Barack Obama’s campaign, said spending by independent organizations affects how candidates run elections.
The money “really mattered; it shaped the way the Obama campaign spent its money, and forced it to run a ground game,” Gerken said.
Sheri Qualters can be contacted at firstname.lastname@example.org.