Federal Judiciary

Citizens United’s impact spreads

By Akin Gump Supreme Court Practice Group

Without waiting until it writes new rules to carry out the Supreme Court’s controversial January ruling lifting campaign finance curbs,  the Federla Election Commission on Thursday approved formation of two new groups that will raise and spend unlimited amounts of money to try to directly influence congressional elections this year. One of the new groups is an offshoot of a Republican-leaning organization that has raised and spent millions in federal elections in recent years; the other is an entirely new group formed by individuals long associated with Democratic campaigns.  There was a lone dissent as the five other FEC members approved both.

An FEC news release, including links to the approved adivsory opinions as well as to the dissenting opinion, is here.  Note that the Commission approved the first of the two drafts regarding creation of a new independent committee formed by Club for Growth, a conservative, low-tax group that usually supports GOP candidates.  The second draft would have delayed any approval for Club for Growth’s new entity until after the FEC writes new rules, expected by the end of 2010.  The second opinion clears the way for creation of a new Democratic operatives’ group named Commonsense Ten.

The Commission acted in the wake of the Supreme Court’s ruling in Citrizens United v. FEC — a 5-4 decision that cleared the way for corporations and labor unions to spend unlimited amounts of money to try to support or defeat specific candidates for federal office, so long as they operate independently of those candidates. their organizations, or the political parties.  The FEC also was responding to a sequel to Citizens United — the en banc D.C. Circuit Court’s unanimous March ruling in  SpeechNow v. FEC.  The SpeechNow decision broadly expanded the scope of the Citizens United ruling, by lifting all curbs not only on independent groups’ spending, but also on the amount of donations they may accept.  (The Obama Administration chose not to challenge the SpeechNow ruling in an appeal to the Supreme Court.)

The impact of those two rulings, and the FEC’s response,  is expected to be felt strongly in the current congressional election cycle, and in the presidential election campaign that looks toward the election in 2012.   While independent groups will be operating free from any ceilings on raising and spending money, the candidates’ organizations and the two national political parties must continue to operate within strict limits set by federal law.  The Supreme Court at the end of last Term summarily upheld, over three dissents,  a lower court ruling that the national politic parties have no constitutional right to raise money outside those legal limits (Republican National Committee v. FEC, 09-1287).

The Club for Growth, in asking the FEC to approve its new independent campaign committee, said that it would only raise money from individuals, not from corporations, labor unions or other organizations.   It was given permission to do that, including permission to take in money that the donors want spent on specific candidate races.  Club for Growth already has a Political Action Committee, but it is subject to some limitations under federal law.

The Commonsense Ten organization told the FEC that it would seek to raise unlimited amounts from individuals, other political committees, corporations, and labor unions.  It said, however, that it would not accept any donations from foreign nationals, federal contractors, national banks, or corporations organized under an act of Congress.

While being free of contribution and spending restrictions, both organizations will file reports describing both to the FEC.  The Supreme Court, while striking down limits on independent spending, upheld the constitutionality of disclosure requirements for such organizations.

Voting Thursday to approve both groups’ creation were Chairman Matthew S. Petersen, Vice Chair Cynthia L. Bauerly, and Commissioners Caroline C. Hunter, Donald F. McGahn II and Ellen L. Weintraub.  Dissenting alone was Commissioner Steven T. Walther.  In his dissenting opinion (the other Commissioners did not write separately from the staff-drafted opinions they approved), Walther contended that the approvals would go beyond what the Supreme Court had allowed in Citizens United, and that any such expansion should await the scheduled rule-drafting process.

Full post as published by SCOTUSBLOG on July 22, 2010 (boomark / email).