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Election 2010
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MONDAY, NOVEMBER 1, 2010 In Wis., Feingold feels impact of court ruling
Advocate of reforming campaign finance sees millions go to opponent
BY ROBERT BARNES
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 themomentChief
Justice John G. Roberts Jr. joined the bench five years ago, the court’s conservatives have acted systematicallyontheir deep skep- ticism of campaign spending re- strictions. They have repeatedly questioned the ability of Con- gress to regulate the role of
“A Senate seat can’t be bought. It has to be earned.” —Sen. Russell Feingold (D-Wis.)
wealth and special interest in- volvement in elections without offending the First Amendment guarantee of unfettered political speech. The court’s rulings are being felt this year everywhere voters
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go to the polls. But they have special resonance in Wisconsin, where Sen. Russ Feingold, the Democratic author of the McCa- in-Feingold campaign finance re- form 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 west- ern 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 cam-
paign finance have assured it the most prominent role in the coun- try’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 ofMcCain-Fein- gold and other campaign-spend- ing restrictions. The capstone came in January, with its 5 to 4 decision in Citizens United v. Federal ElectionCommissionthat rewrote decades of law and said corporations and unions could spend unlimited amounts to sup- port or oppose candidates. It’s not surprising, Feingold
told a small group of supporters recently on the windswept cam- pus of the University of Wiscon- sin at River Falls, that outside groups are gunning for him. He pointed to a recent piece inWash- ingtonian 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 peo- ple.” Polls show Feingold in serious
trouble in his reelection fight with Republican businessman RonJohnson. Johnsonhas invest- ed more than $8 million of his money in the race, and although the two campaigns are competi- tive 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 aWashington Post anal- ysis shows 92 percent of the out- side spending has supported the Republican. The impact has been obvious: The Wesleyan Media Project said there have beenmore commercials about the Senate race in Wisconsin than in any state outside Nevada, where Sen- ate Majority Leader Harry M. Reid (D) is running for reelection. This year’s elections have seen
a tidal wave of campaign spend- ing by outside groups, many of whom do not disclose their do- nors. 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 candi- dates. The midterm elections have also shown the justices’ lack of familiarity with the realities of campaign fundraising and disclo- sure laws, they say. Trevor Potter, a former FEC chairman who was the attorney for Sen. John McCain’s presiden- tial campaigns, said there was already a “boatload of spending” bycorporate interests in elections before Citizens United. But the ruling made clear that there were no legal obstacles to their partici- pation, 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, “fewoutside 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 corpo-
rate speech is to muzzle the prin- cipal 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 formerFECchairman,
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’ ef- forts to limit campaign contribu- tions, 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 lawinspired by Smith’s group, the Institute for Justice, the James Madison Center and oth- ers. 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
“[Spending] has . . . put more races into play.”
—Bradley Smith, Center for Competitive Politics
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 restric- tions on groups running “issue” ads mentioning a specific candi- date 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 opin-
ion, the majority — the chief justice, Alito, Scalia,Kennedyand Justice Clarence Thomas — said such restrictions were warranted only if there was no other under- standing of the ad except as a plea to vote for or against the candi- date. The same five justices a year
later struck the law’s “million- aire’s amendment,” which in- creased 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 aboutHil- lary Rodham Clinton, the court reached beyond the narrow ques- tion presented. It asked attorneys for the groupandthe government to weigh in on whether it should overturn its precedents forbid- ding corporations and unions from using their general treasur- ies to support or oppose candi- dates.
Columbia University law pro-
fessor Nathaniel Persily said the moves offer a greater lesson on howRoberts influences the court. “Campaign finance is just one
area where Chief Justice Roberts has strung together a series of minimalist decisions that eventu- ally have a revolutionary effect,” Persily said. “The significance of each incre-
mental 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 un- constitutional, 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 corpora- tions have the same right to polit- ical speech as individuals. But the court had made a similar ruling regarding a corporation’s ability
The neighbors have home delivery.
to spend money to influence a referendum. Congress is right to be con-
cerned about the appearances of corruption orquid pro quo cor- ruption that could accompany expenditures by corporationsand unions, Kennedy wrote. “The remedies enacted by law, howev- er, 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 safe-
guards in place for worries about unfettered political activity by corporations and unions: disclo- sure. “The court has explained that disclosure is a less restrictive al- ternative to more comprehensive regulations of speech,” he wrote. And he said it was easier now
than at the timeMcCain-Feingold was passed. “With the advent of the Inter-
net, prompt disclosure of expen- ditures 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 mes- senger. But real life has revealed prob-
lems with that approach. Critics of the ruling said Kennedy and the majority did not address rul- ings by the FEC and IRS, which govern the myriad political groups and nonprofit organiza- tions active in elections, that they need not always disclose their donors. FredWertheimer, the longtime campaign finance watchdog who isnowpresident ofDemocracy 21, estimates that groups will spend as much as $200 million during the midterm elections without disclosing the source of the mon- ey.
And after the ruling, with unanimous opposition from Re- publicans, includingMcCain, the Senate did not toughen disclo- sure requirements . To McCain and Feingold, the
court’s actions on campaign fi- nance 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 inca- pable of passing campaign fi- nance 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 unfor- tunate lack of understanding of the facts and history of campaign reform.” But Smith said the indepen-
dent spending in many cases has helped challengers who other- wisewouldbeoutspentbyincum- bents. “It has done just what I thought it would: level the play- ing 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 mak- ingWisconsin 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 contri- butions to the political parties — remains the law. The court at the endof last year’stermdecided not to hear a challenge about “soft money.” In the Citizens United deci-
sion, Roberts and wrote sepa- rately to say they respected prec- edent, as they had testified to in confirmation hearings. But they said they had to “balance the importance of having constitu- tional questions decided against the importance of having them decided right.” Feingold does not buy it. “Frankly, as far as I’m con-
cerned, they completely disre- garded 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.”
barnesb@washpost.com
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.
1-800-753-POST SF
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