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Decades of Campaign Finance Law Under Siege

Many decades of hard-earned reforms to the nation’s campaign finance laws are in danger of being dismantled by a litigation offensive mounted by interests opposed to those reforms.

Emboldened by the conservative majority in the U.S. Supreme Court, ideological and interest group opponents of campaign finance regulation have brought an unprecedented number of cases in the past year to challenge campaign finance laws at the federal, state and municipal levels.  The challenges are being brought by national party committees, trade associations, ideological groups and so-called “527” organizations.  These opponents are often represented by attorneys working for tax-exempt organizations whose public filings reveal little about their funding sources and whose primary mission is to overturn existing campaign finance laws.

What is most striking about these groups’ litigation effort is that it challenges longstanding campaign finance laws that have already been upheld and declared constitutional.  For this reason, their challenges often fail in the lower courts as these courts simply uphold preexisting Supreme Court precedent that is supportive of campaign finance regulation.  The problem is that under Chief Justice John Roberts, the Supreme Court is quickly undermining that very precedent.

The Roberts Court, however, is not overturning earlier Supreme Court rulings openly.  In their current offensive, anti-reform groups rarely challenge the general constitutionality of campaign finance law “on its face,” but instead frame their cases as challenges to the law “as applied” to specific situations.  These kind of “as applied” challenges have given the Roberts Court the opportunity to significantly erode existing precedent without having to reverse such precedent explicitly.  Effectively, however, the Roberts Court has begun to overturn a variety of campaign laws previously upheld by the High Court.

At the federal level, recent challenges are attempting to tear down many decades’ worth of election law, including the principles behind restrictions on corporations that extend as far back as the Tillman Act of 1907.  That Act banned political contributions by corporations and was shepherded through Congress by President Teddy Roosevelt in an era when corporations wielded staggering power in Washington as the main sources of funding for political parties.   Challenges to other long-standing provisions of the election laws, such as coordinated party spending limits, demonstrate that the mission of anti-reform advocates is far more ambitious than merely rolling back the Bipartisan Campaign Reform Act of 2002 (BCRA), also known as McCain-Feingold.  Instead, their apparent goal is to go back nearly a century and dismantle many of the campaign finance reforms enacted in the wake of the Watergate era scandals and to revert to an era of unregulated, undisclosed spending in federal elections that fueled public outrage at the turn of the 20th Century.

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