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Preparing for a Sweeping Change in Campaign Finance Law

Monday, September 14, 2009  |  posted by Hugh Hewitt

For more than 30 years the United States Supreme Court has struggled to square limits on campaign contributions with the First Amendment’s ringing language that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”

Congress and state and local governments have participated in this effort, passing scores of statutes and regulations that seek to “balance” interests and ward off the corrupting influence of money in politics.[# More #]

Of course we still have the corrupting influence of money in politics, and we have a giant industry surrounding the management of campaigns and the raising of funds according to the myriad rule sets that exist.

We also have the increasing domination of politics by the super-wealthy, as they can afford to self-finance their campaigns in whole or part while even well-off citizens refuse to submit to the endless task of raising a competitive amount of money via individual donations.

President Obama harnessed the internet in 2007-2008, and destroyed what little semblance of balance was left in the federal system by refusing to honor his pledge to live by the federal campaign spending limits, and his campaign spending swamped that of John McCain’s.

Now, surrounded by the ruin of the reformers’ ambitions and certainly aware of the accelerating trend towards a Congress truly open only to multi-millionaires, the Supreme Court of the United States last week heard arguments on whether or not the federal system ought to be scrapped and the First Amendment’s core value of protecting political speech restored to its rightful place.

The case is Citizens United v. FEC, and a very unusual September argument on its merits was heard last Wednesday. The argument was overshadowed by President Obama’s speech that night and by the general focus on Obamacare, but the potential importance of the case is difficult to overstate.

Here’s the SCOTUS Wiki on the proceedings.

I am going to devote two hours of today’s broadcast to this case and to the arguments advanced and questions posed by the justices at last week’s hearings. Dean Erwin Chemerinsky of the University of California Irvine Law School and Dean John Eastman of Chapman University Law School –the “Smart Guys” as they have been known by my audience for a decade– will join me with Erwin assigned the task of representing the government and defending the McCain-Feingold statute and all of its cousins, and John assigned the job of representing Citizens United and beyond that, the interests of free speech and a political system open to all of its citizens and not rigged to benefit the well-heeled.

My view is hardly a surprise to my listeners. Ordinary citizens ought to be able to compete on a level playing field with wealthy citizens by approaching sympathetic donors and enlisting their wealth in an effort to compete against self-funding millionaires, and political messages funded by groups of like-minded activists ought never to be barred from the airwaves.

If, as many suspect, the Court strikes down a large part or even all of the McCain-Feingold statute and perhaps even issues a ruling overturning in whole or part Buckley v. Valeo, expect an armada of challenges to state and local laws and regulations to launch, as well they should. Depending on how the court rules, constitutional law experts could well be busy challenging these statutes for a couple of years, but at the end of the cycle of challenges, the country’s politics will be much better positioned to thrive and survive another two centuries of robust, well-funded political debate.

Candidates, consultants and contributors –both actual and potential– should be planning their responses now as the 2010 cycle will be the first to be impacted by the decision. The Court’s rare September argument suggests that at least some of its members understand the urgency of a timely ruling in the case, so that the political year ahead will unfold fairly for all the candidates, and not just the self-funders. Imagine how many more candidates from both sides of the aisle and from third parties might join the campaign if they were assured of a level playing field with the multimillionaire incumbents or candidates.

Today’s program will be the subject of an open thread over at The Hughniverse.

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