It’s been nearly two years now since the Supreme Court’s Citizens United decision triggered an earthquake that cracked the foundations of our campaign finance system and altered the political landscape. The case roused a dormant Section 527 of the Internal Revenue Code, opened up new channels for soft money, and gave rise to the creation of “SuperPACs.”
Looking back, the 2010 elections looked nothing like the 2008 elections. And as we look ahead to the 2012 elections, we can see that the dust is still settling. In no particular order, here is a non-exhaustive list of twelve political law issues to watch as they unfold this year in the spotlights and shadows of the presidential election:
1. The Crumbling Regulatory Infrastructure. With its commissioners deadlocking along party lines on big questions of policy and enforcement, many fear the FEC as presently constituted appears to have reached the outer limits of its ability—if not its authority—to regulate politics. The Election Assistance Commission, set up in the wake of the disputed election of 2000, is now a commissionerless “zombie agency.” Our system of public financing for presidential campaigns appears to be dead. What will it take to reverse the deregulatory spiral?
2. The Role of the Supreme Court. The Supreme Court, and in particular its conservative majority, has been battered for its decisions in consequential election law cases like Bush v. Gore, Citizens United and McComish v. Bennett, but to what effect? Earlier this week, the Court summarily affirmed a lower court’s decision upholding the prohibition on political contributions by foreign nationals. It also heard oral arguments in a pair of Texas redistricting cases in which Section 5 of the Voting Rights Act was said to be at risk of falling, but commentators have suggested, based on the arguments, that Section 5 appears to be safe, at least for now. Has the Court gone as far as it wishes to go in deregulating politics, or perhaps been brushed back by the uproar over Citizens United? A number of other controversial political cases percolating in the lower courts may provide the ultimate answer—including Danielczyk, challenging the corporation contribution ban, Wagner v. FEC, challenging the ban on contributions by federal government contractors, and Shelby County v. Holder, in which the constitutionality of Section 5 will be more directly at issue.
4. Coordination. For decades, the linchpin of our campaign finance law was the ban on corporate contributions. Now that even Section 441b may be teetering, the FEC’s much maligned coordination regulations are emerging as the most important provisions in Title 11 of the Code of Federal Regulations. As candidates and outside groups continue searching for the outer boundaries of those regs, and reform groups search for opportunities to file complaints like this one, 11 C.F.R. §§ 109.20, 109.21 and 109.22 are going to get a workout this coming year.
5. The John Edwards Trial. Political lawyers from across the ideological spectrum seem to have concluded that United States v. Johnny Reid Edwards is a real stretch. (I disagree, but appear to be in a small minority.) Nevertheless, the case survived Edwards’ motions to dismiss and is presently scheduled for trial this Winter. Resolution of the ultimate question will be interesting enough—whether a federal candidate committed a crime by orchestrating or signing off on a plan to funnel a million dollars from wealthy campaign donors to his mistress—but there are other issues as well, including whether the judge will permit two former FEC commissioners to offer opinion testimony as expert witnesses—not on issues of fact, but on the ultimate legal issue in the case.
6. The Wisconsin Recall Election. Whether or not Mitt Romney runs the table and puts the GOP presidential primary away early, by Spring the center of the political universe likely will have shifted to Wisconsin, where Governor Scott Walker probably will be facing a recall election. Legal issues already have arisen, including a successful claim that the equal protection rights of voters who refused to sign recall petitions are violated by lax validation of the signatures that do appear on the petitions. We can’t know what other legal issues may arise in connection with the Wisconsin recall, but with the amount of attention, money and political talent that probably will be pouring into the Badger State this Spring, we can be certain that legal issues will arise—and that when they do, they will be interesting, consequential and fiercely contested.
7. GOP Presidential Primaries in NH, SC, FL, AZ & MI. The Republican National Committee has stripped New Hampshire, South Carolina, Florida, Arizona and Michigan of half of their delegates for failing to abide by the RNC’s presidential primary calendar—the second consecutive cycle in which this type of action has been taken. Perhaps someone will put the GOP nomination away early and arrive in Tampa with a first ballot majority, in which case this probably won’t become a major issue. But what if no one locks up the nomination early, and two or more candidates find themselves locked in a state-by-state, delegate-by-delegate slog—as was the case for the Democrats in 2008? All of the sudden those extra delegates would become incredibly important, and you can bet lawyers on all sides would be looking for a way out from under this decision from 2008.
8. Americans Elect. As the American electorate’s approval of the incumbents and institutions of our government plunges to generational if not historic lows, Americans Elect is planning to hold an open, online nominating convention that will result in a bipartisan ticket it hopes will be on the ballot in all 50 states. But already the group has been the subject of controversy surrounding its tax status (501(c)(4)), its donors (they’re not disclosed), as well as a veto the organization will hold over the ticket that ultimately emerges from the nominating process.
9. Redistricting Battles. Redistricting always spawns litigation, and this year is no exception, with over 100 redistricting cases now pending in the courts. But some of this year’s cases will go beyond usual issues like contiguity, compactness and communities of interest. Virginia is facing a lawsuit alleging that the General Assembly forfeited its chance to draw new congressional districts because it did not do so in Calendar Year 2011, as required by the state constitution. At least four other states, too, have not been able to pass one or more maps, giving rise to the possibility of judge-drawn maps in those states. The 11th Circuit is considering the constitutionality of a “Fair Districts Amendment” to Florida’s state constitution, which opponents allege violates the Elections Clause of the U.S. Constitution by placing the responsibility for drawing new lines in a commission comprised of unelected citizens. It’s possible that similar laws in a handful of other states could fall too if the Florida law is struck down.
10. Outside Money: You Can’t Stop It; You Can Only Hope to Contain It. Mitt Romney’s call to abolish them notwithstanding, SuperPACs are here to stay, at least for the foreseeable future. So are corporate contributions to (c)(4)s, (c)(5)s and (c)(6)s. So expect reform advocates to attempt to hamstring these groups with new disclosure requirements—aimed at the organizations and their potential donors. Earlier this year, the FEC deadlocked on a request by Maryland Rep. Chris Van Hollen to initiate a new rulemaking to change the disclosure requirements for independent expenditures, but a federal court yesterday heard arguments in a related lawsuit Van Hollen filed concerning electioneering communications. Also, calls for more voluntary disclosure of corporate political spending and shareholder approval of certain political contributions and expenditures are continuing. And then, of course, are the forces pulling the other way, including the newly-formed “SuperPAC for Hire,” as well as Dan Backer of DB Capitol Strategies, who wants to give every PAC the chance to be Super.
11. Tax Status Complaints. Reform groups have filed numerous IRS complaints against politically-active 501(c)(4) organizations, all generally alleging that the groups violated the tax law’s “primary purpose” requirement by engaging in excessive election-related expenditures. Will the IRS move this year against any of these groups? Still other complaints allege that the FEC should be required to regulate certain politically-active (c)(4)s as federal political committees. Would the FEC reach that far across the U.S. Code? Action along these lines by either agency would be a very significant development in this area of the law.
12. Just How Super Will the Colbert SuperPAC Be? Comedian Stephen Colbert’s independent expenditure only committee, Americans for a Better Tomorrow, Tomorrow, has been satirizing SuperPACs for months now, but it has yet to file an FEC report of its own. When it does file later this month, just how super will it be—meaning how many corporate contributions, and individual contributions in excess of $5,000, will it report? Will it continue to be an effective exercise in satire if it does not raise significant soft money contributions? And will it actually attempt to influence a federal election by making a communication that constitutes an independent expenditure?