Will courts allow more transparency?

February 25, 2009

By Laura MacCleery

As public scandals continue to erupt - from the Illinois spectacle to graft in the municipal bond marketplace - and the economy heads further south, public trust in institutions is reaching a new nadir. President Barack Obama, attentive to this souring mood, is making greater government accountability and openness a centerpiece of his approach.

Yet in federal and state courts across the country, a sudden surge of lawsuits threatens to overturn existing good government laws, including challenges to bedrock principles such as disclosure of spending on elections. Perhaps sensing a closing window on the Supreme Court, conservative lawyers are seeking to use recent high court rulings to deregulate campaign spending and contributions. If successful, such moves may make reforms far harder to craft - just when citizens are pushing for greater transparency in government.

The litigation wave comes in the wake of three Supreme Court decisions, Davis v. Federal Election Commission, FEC v. Wisconsin Right to Life and Randall v. Sorrell. For decades, the court routinely upheld limits on contributions, supported disclosure requirements and generally preserved transparency rules and limits. Most notably, in 2003, it upheld the landmark Bipartisan Campaign Finance Reform Act banning unregulated money to political parties.

But in the more recent cases, a new majority signaled its eagerness to embrace a far more ideological approach, tossing out contribution limits as too low in Randall, enlarging the areas in which corporations and unions can spend money on electioneering communications in Wisconsin Right to Life and throwing out rules providing more money to candidates who face a wealthy opponent in Davis.

This spring, the court will decide another important case, Citizens United v. FEC. It challenges the constitutionality of federal rules requiring disclosure of financial sponsors for "Hillary: The Movie," a two-hour denunciation of the then-primary candidate. It also contests requirements that advertisements state who "is responsible for the content." A brief filed by former Solicitor General Theodore Olsen asks the court to overturn precedents that for years justified requiring disclosure of spending by outside groups seeking to influence elections.

Another two cases were filed by the Republican National Committee the day after the presidential election. They challenge the constitutionality of bans on unlimited funds and coordinated spending supported by the GOP's own nominee, John McCain. The RNC publicly admits that it believes it cannot be competitive in the next election without limitless donations from corporations and other deep-pocketed interests.

As Jeffrey Rosen wrote last spring, pro-business conservatives, and specifically the legal hawks for the Chamber of Commerce, have angled for influence on the court and courted members of the federal bench for more than 35 years. The current legal attacks are, in some ways, the last big stand for covert attempts to manipulate the electorate, because the window of opportunity will narrow as the federal judiciary is reshaped by Democratic appointments.

Yet the result could be pre-Watergate-era levels of public transparency and accountability for elected officials. Losing now would produce a system badly out of step with the need for more transparent government, leading to considerable public frustration.

Despite an explosion of small-donor activity and encouraging indications from the 2008 election about voter participation, large contributions still played a substantial role in this election. While Mark Schmitt's recent article in The American Prospect overlooks this point, the development is a result of BCRA's requirement that parties and candidates collect limited hard money from individuals.

BCRA cut off unregulated money to party coffers, requiring candidates to aggressively reach out to new and smaller donors. As Brian Wolff, chairman of the Democratic Congressional Campaign Committee, told The American Prospect, BCRA "forced us to do what we should have been doing all along, which was including more people in the political process."

Coupled with Internet-based solicitations that lower costs, BCRA's limits created space for small donations to matter. Moreover, limits and disclosure are important for a new wave of reforms - public funding systems - because they keep the public informed and enhance fairness and competition.

Yet opponents are pushing for constitutional rulings that could take core reforms off the table. How far the Roberts court may go in dismantling these laws is anyone's guess.

The stakes are high. The attacks - and others no doubt being planned - directly imperil the public's right to know who is paying for politics and politicians. Their success would drown out the voices of small donors, extinguish the promise of continued progress on transparency and destroy the ability to track money flowing into our elections.

Laura MacCleery is the deputy director of the democracy program at the Brennan Center for Justice at the NYU School of Law.