With the McCutcheon v. FEC Supreme Court case scheduled to be heard on October 8th of this year, a mere three years after the decision of Citizens United v. FEC, the organized challenge to campaign finance reform is becoming a bit too conspicuous not to notice.
The man spearheading this campaign finance counter-reformation is James Bopp, a longtime conservative activist and attorney, who has slowly and strategically engineered the gutting of former judicial precedent. In a 2010 New York Times article, Richard Hansen, an expert on campaign finance regulation, described Citizens United as Bopp's "brainchild". Bopp, quoted in the same article, corroborated these assertions when he noted, "We had a 10 year plan to take all this down"_And if we do it right, I think we can pretty well dismantle the entire regulatory regime that is called campaign finance law". This "regulatory regime" did not materialize from thin air, but rather from the political corruption of the Watergate era, which birthed legislation in the form of Federal Election Campaigns Act (FECA) in 1972.
Although FECA has been battered and its regulatory powers significantly curtailed in the interim thirty nine years when it was first enacted, it's still helpful to think about Bopp's strategy to further disarm campaign finance through its original goals: to demanded full disclosure of campaign contributions, to place a ceiling on expenditures and to impose limits on media advertising. True to his statement of his "10 year plan", Bopp has been successful in kicking out these three legs from that the edifice of campaign finance reform stands upon.
In 2007, Bopp went after money in political advertising in Federal Election Commission v. Wisconsin Right to Life. Prior to this court case regulations prohibited corporations and unions from sponsoring "electioneering communications", which are ads costing in the total of $10,000, sixty days before a general election and thirty days before a primary. Bopp successfully argued to a majority of the court that this violated the right to free speech and was therefore unconstitutional.
Leg one out of three was thrust from under campaign finance reform.
Next on Bogg's list was to hack away at limits on expenditures in political campaigns. Citizens United was his chosen vehicle. Although, Bogg did not argue the case in front of the Supreme Court, he fought the early battles in lower courts and engineered the arguments that allowed it to achieve its final victory in January of 2010 when the Court found that corporations and unions are fully within their rights to send their own money to support or oppose the candidacy of a politician. The effects of the ruling became apparent two years later in the 2012 election season, the total costs in electoral battle between President Obama and Governor Romney topped $1 billion.
And then there was one.
Immediately after winning Citizens United, Bopp began working with conservative non profits in California who were active in the fight to pass Proposition 8 (a prop to make gay marriage unconstitutional). In the aftermath of their victory, those who donated $100 were publicly available for inspection, per the California Fair Practices Commission's legislation. The conservative nonprofits, Protectmarriage.org and the National Organization for Marriage California, worked with Bopp to argue in California courts that this disclosure of campaign contributions was unconstitutional because conservative activists were facing retribution and harassment from gay rights advocates.
Around the same time, Bopp was involved in a suit on behalf of the Republican National Committee that sought to overturn limits to direct contributions to candidates. This suit, which was in the Columbia District Court for a number of years, will finally see its day in the Supreme Court under McCutcheon v. FEC.
Pending the success of this case it is fair to say that campaign finance reform will not only have been defeated, but that democracy in America faces a severe case of regressing past the worst excesses of Watergate era. At least when that corruption came to light it was found illegal by the American system and those involved were penalize, this time around things have been turned on its head. The American system, far from its duty of holding power accountable and ensuring democracy, is abetting and facilitating legalized corruption.
For further reading, please see this Atlantic Magazine publication on the new price of American Politics.
Office: California Common Cause
Tags: Overturn Citizens United