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The Counter-Reformation: The Fall of Campaign Finance Reform

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First Posted: 09/27/2011 3:01 pm Updated: 11/26/2011 4:12 am

This article is part of a collaboration with MSNBC's "The Dylan Ratigan Show" for the series "Mad As Hell: Get Money Out," that aired Monday and continues Tuesday at 4 p.m. EST.

WASHINGTON -- In the first two weeks of January 2006, the Senate Judiciary Committee held confirmation hearings for President George W. Bush's second nominee to the Supreme Court, Samuel Alito. By replacing Justice Sandra Day O'Connor with Alito, Bush was replacing the Court's swing vote with a reliable conservative. This move would affect countless issues, but one that never came up during those confirmation hearings, campaign finance reform, would wind up the defining issue of Alito's early years on the Court.

In decision after decision with Alito on board, the Supreme Court has gutted a large part of the campaign finance regulation system set up in the 1970s. The 2007 Wisconsin Right to Life v. Federal Election Commission (FEC) created a loophole in the 2002 campaign finance reform law known as McCain-Feingold allowing corporations and unions to run certain types of election ads, but that decision stopped short of allowing unlimited spending to go toward what is known as express advocacy, calls for the election or defeat of an opponent.

This loophole was blown open by the 2010 ruling in the Citizens United v. FEC case, essentially creating a separate, deregulated sphere for non-party and non-candidate groups to spend and raise money from corporations, unions and individuals as they saw fit.

In 2011, the Court invalidated a public financing law in Arizona that provided matching funds to candidates whose opponents were spending their own money.

Other lower court cases are percolating up and could provide other opportunities for further gutting of the campaign finance regulation system.

The Court isn't the only body responsible for the current state of campaign finance reform. The FEC has deadlocked on two important votes on implementing rules to govern the groups now spending money freely post-Citizens United and mundane subject matter including enforcement fines against campaigns. Congress, too, is intractably gridlocked. Democrats and Republicans are now further apart on the issue of what to do about money in politics than ever before.

For those who want to remove money from the political equation, this may be their bleakest moment.

"We're in a very rough patch right now," campaign finance reform advocate Fred Wertheimer, President of Democracy 21, a nonpartisan nonprofit, told HuffPost. "We have a very hostile Supreme Court. We have a highly partisan, gridlocked legislative process which makes it exceptionally difficult to put together bipartisan reform legislation."

The more than a dozen campaign finance reformers, election lawyers and supporters of campaign finance deregulation who spoke with HuffPost agreed one man has put campaign finance reform on the ropes: Justice Samuel Alito.

"We got here because Justice O'Connor retired," said Campaign Legal Center President and CEO Trevor Potter, a former chairman of the FEC and counsel to Sen. John McCain's (R-Ariz.) 2008 presidential bid.

Election law professor Rick Hasen, author of the Election Law Blog, echoed that sentiment. "The reason this took off and changed in the last few years can be explained very simply by the retirement of Justice O'Connor and her replacement with Justice Alito. That changed the court to a 5-4 majority that is hostile to all regulation of money in politics aside from disclosure laws. Citizens United was one of series of attempts to get the courts to strike down major campaign finance laws. It wasn't the first successful one, it was just a nail in the coffin."

Citizens United was just one of many legal challenges to campaign finance regulation that have rapidly increased in recent years. These challenges have been intentional efforts to bring ideal cases before the Court to gain expansive rulings that would roll back the current system of campaign finance regulation. They have been aided by a growing apparatus in Washington and elsewhere of counter-reformers who support the deregulation of campaign finance.

"Six years ago, there was no known entity to get an opinion that is different from the [pro-campaign finance reform] Common Cause and League of Women Voters line," explained Brad Smith, the Chairman and Co-Founder of the Center for Competitive Politics (CCP) and a former FEC chairman.

CCP was founded in 2005 to bring an alternative viewpoint to campaign finance in Washington: Tere is nothing wrong with money in politics. The group has helped to disseminate research, provided professional testimony in Congress and state legislatures, and submitted amicus curiae briefs for court cases contesting campaign finance regulation.

"In legislatures, for example, we get calls all the time," Smith said. "Just six years ago they didn't know where to get witnesses to express a critical view on reform, particularly at the state level. That has slowly been changing public opinion."

CCP and other groups have been laying the foundation for a counter-campaign finance reform establishment. Yet much of the success seen by the counter-reformers has come from one man's quest to end campaign finance regulation through litigation.

Jim Bopp operates the James Madison Center for Free Speech and has devised a strategy to attack campaign finance regulation through the courts. Bopp's position is based on a simple argument: The First Amendment, he says, "is written in strong terms as a protection for speech generally and political speech specifically." Cases brought to the Supreme Court by Bopp include Citizens United v. FEC, FEC v. Wisconsin Right to Life, and Doe v. Reed. Bopp is also leading challenges in lower courts to disclosure requirements for corporations and independent groups and direct corporate contributions to candidates.

"Jim Bopp has always been very active, but it has seemed that since Citizens United, or even before, in 2009, there's been a big push to eliminate as broad a swath of campaign finance laws as possible," Campaign Legal Center lawyer Tara Malloy told HuffPost. "It doesn't seem like this litigation offensive is going to cool down anytime soon."

Campaign finance regulation "is way too complicated, confusing, difficult and is not serving the public interest of accountability and transparency," Bopp told HuffPost. "The biggest problem, which is the fountainhead for all of this, is contribution limits."

Bopp explained that limits on that amount an individual can contribute to a candidate, which were enacted under the original Federal Elections Campaign Act of 1971 and upheld by the Supreme Court's ruling in Buckley v. Valeo, are the real root of the current rush of money into independent political committees filed as nonprofits or trade groups.

"As you regulate and restrict candidates, people went to advocacy groups and parties, then they went off to 527s or LLCs," Bopp said. "When Congress is taxing and regulating you and passing around a lot of money people want to participate. That’s just perfectly natural."

Recently, the counter-reformers have run up a string of losses in court on the issue of disclosure. One thing that the Supreme Court's Citizens United ruling did protect was disclosure provisions for all political spending, a decision that is leading lower courts to reject the multiple attempts to gut state disclosure requirements.

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