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June 01, 2014

Congress weighs campaign finance proposals

Hearings continued on Capitol Hill this spring on the impact of the Supreme Court’s April 2 decision abolishing limits on aggregate amounts that an individual may contribute to political candidates and political party committees.

The court’s 5-4 decision in McCutcheon v. Federal Election Commission, 572 U.S. __ (2014) followed another 5-4 decision in Citizens United v. FEC, 558 U.S. ___ (2010), that ruled that corporations and unions have the same political speech rights as individuals under the First Amendment and may not be prohibited from contributing their general treasury funds for election-related independent expenditures.

In a May 6 letter for the record of an April 30 hearing held by the Senate Rules and Administration Committee, ABA Governmental Affairs Director Thomas M. Susman said the ABA has long been concerned with campaign finance and election issues and is a strong supporter of transparency in the political process.

ABA policy adopted in 2013 supports efforts to ensure consistent disclosure of political and campaign spending by entities making political expenditures. The policy also urges Congress to require organizations not already required to do so by current law to disclose the amounts spent on electioneering communications and independent expenditures, as well as the sources of such funds.

Susman said the McCutcheon and Citizen United decisions “dismantled key components of our campaign finance framework, which will result in significant additional money pouring into the system and are bound to increase the public’s concern over undue influence in governmental decision-making.”

He added that it will be critical to ensure that this additional money is not used in a way that circumvents contribution limits still in place and to ensure full and timely disclosure of all federal campaign contributions and expenditures.

Before the McCutcheon decision, the aggregate limit on political campaign contributions by an individual was $123,200 over a two-year election cycle.

Committee Chairman Chuck Schumer (D-N.Y.) announced during the April 30 hearing that the Senate will take a vote this year on S.J. Res. 19, a proposed constitutional amendment introduced by Sen. Tom Udall (D-N.M.). Udall, a member of the committee, said that “free and fair elections are a founding principle of our democracy, but the Supreme Court’s rulings have ensured that they are now for sale to the highest bidder.”

In a rare appearance on Capitol Hill, retired Supreme Court Justice John Paul Stevens expressed support for the constitutional amendment, which would state that neither the First Amendment nor any provision of the Constitution shall be construed to prohibit Congress or any state from imposing reasonable limits on the amount of money that candidates for public office or their supporters may spend in election campaigns.

“Unlimited campaign expenditures impair the process of democratic self–government,” Stevens said. “They create a risk that successful candidates will pay more attention to the interests of non-voters who provided them with money than to the interests of the others who elected them. That risk is unacceptable,” Stevens emphasized.

The Senate Judiciary Committee continued the discussion June 3 at a hearing marking the first time in history that the top two Senate leaders appeared together to testify. Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) took opposing views on the proposed amendment.

Reid supported the proposal, testifying that the “flood of dark money into our nation’s political system poses the greatest threat to our democracy that I have witnessed during my time in public service.” McConnell warned that a constitutional amendment would “empower incumbent politicians in Congress and in the states to write the rules on who gets to speak and who doesn’t.”

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