Many think that the Supreme Court is about to make it easier for corporations and unions to spend money during an election. And while SCOTUS is considering that, the DC Circuit just made it easier for advocacy groups to do so.
It is another hit to the McCain-Feingold Bipartisan Campaign Reform Act, which is becoming one of the more tattered pieces of legislation around. The FEC in 2005 required that such committees use hard cash donations, with an annual cap of $5K from any one donor, for the purchase of airtime for electioneering communications. It was in part a reaction to advertising during the 2004 presidential campaign from so-called 527 groups such as Swift Boat Veterans for Truth and MoveOn.org.
The case before the District Court of Appeals for the DC Circuit was brought by Emily’s List, an organization that supports female candidates for office who in turn support women’s reproductive rights.
Judge Brett Kavanaugh wrote, “The First Amendment, as interpreted by the Supreme Court, protects the right of individual citizens to spend unlimited amounts to express their views about policy issues and candidates for public office.” He added that the First Amendment “safeguards the right of citizens to band together and pool their resources as an unincorporated group or nonprofit organization in order to express their views about policy issues and candidates for public office.”
One observer noted that it put the political parties’ own organizations, like the RNC and DNC, at a huge competitive disadvantage with non-affiliated groups, since the professional organizations are still subject to hard money rules.
RBR-TVBR observation: Even when these rules were being enforced they did not seem to constrict the flow of cash into the election process. However, that was in part due to campaigns, particularly that of Barack Obama, adapting to new realities and using a trail blazed by Howard Dean that tapped thousands of small donors via the internet for funding.
Campaign reformers are having a very hard time getting the courts to cut off the big spenders, however. We’ll be watching for more court challenges and appeals, and we’ll be watching how political advocacy groups end up spending money next year.
If the courts keep the faucets wide open, which is the way this is certainly trending, 2010 could produce an enormous political ad spend. Stay tuned.