WSJ Wants To Kill A Key Piece Of Post-Watergate Campaign Finance Reform
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The Wall Street Journal is advocating for the elimination of decades-old law crafted in the wake of the Watergate scandals that prevents coordination between independent groups and political candidates -- a radical position the Journal pretends is a rejection of a "liberal campaign" but actually is a rejection of the conservative majority opinion in Citizens United.
In an October 20 editorial, the Journal praised a highly controversial federal district court judge's newest attempt to legalize prohibited coordination between Gov. Scott Walker (R-WI) and outside right-wing groups. Under investigation for suspected violation of campaign finance laws, these organizations are suing in an attempt to have rules against this type of coordination declared unconstitutional. Although the Citizens United decision allowed corporations to make previously disallowed expenditures in support of political candidates, the opinion from the conservative justices still recognized that a crucial guard against corruption was the federal prohibition on coordination between unlimited "independent" money and the politicians' actual campaigns. Yet the campaign finance nihilists on the Journal editorial board object to this long-established principle as well, misleadingly referring to coordination as a "new liberal target":
That came into stark view last week with a new and welcome judicial ruling in Wisconsin, only days after the Brennan Center issued a trumpet call for government to find more ways to criminalize campaign spending. The new liberal target is "coordination" between politicians and independent groups. This is dangerous stuff.
[The plaintiff in the Wisconsin campaign finance case] is Citizens for Responsible Government Advocates, an advocacy group that wants to collaborate with politicians on a project called "Take Charge Wisconsin" to educate the public about fiscal responsibility and property rights. But the group was unsure it could proceed under Wisconsin law as interpreted by prosecutors, so it sought relief in federal court.
The problem is that Wisconsin and other states have set up elaborate bureaucracies like the Government Accountability Board (GAB) to police free speech and harass individuals and groups that want to run political advertising. Wisconsin's GAB and Milwaukee District Attorney John Chisholm "have taken the position that coordinated issue advocacy is illegal under Wisconsin's campaign finance law," wrote Judge [Rudolph] Randa.
That legal interpretation has already been rejected by state judge Gregory Peterson, but the state and Mr. Chisholm are appealing. Thanks to Judge Randa's ruling, at least the conservatives will be able to engage in issue advocacy without fear of prosecution in the few remaining days before the election.
It's important to understand that this political attack on "coordination" is part of a larger liberal campaign. The Brennan Center -- the George Soros-funded brains of the movement to restrict political speech -- issued a report this month that urges regulators to police coordination between individuals and candidates as if it were a crime.
The report raises alarms that independent expenditures have exploded since the Supreme Court's 2010 Citizens United decision, as if trying to influence elections isn't normal in a democracy.
Although the Journal insists that attempts to eliminate coordination between independent groups and candidates are a liberal plot, it is actually a bipartisan goal that has been repeatedly endorsed by the Supreme Court, including its conservatives. In the 1976 case Buckley v. Valeo, the Court found that "[u]nlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign, and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate." In other words, the Court determined that a lack of coordination between candidates and outside groups is necessary to reduce the potential for or the appearance of corruption in the political process, the core reason campaign finance is regulated.
As nonprofit advocacy group Public Citizen explained in a new report, this key premise about the corrupting influence of coordination from Buckley was retained by the current conservative justices in 2010's Citizens United, despite the fact that an alarmingly large number of purportedly independent groups may be doing precisely what is being litigated in Wisconsin -- collaborating with the candidate and making de facto contributions. Public Citizen writes, "These findings undercut the U.S. Supreme Court's rationale in its 2010 decision in Citizens United v. Federal Election Commission, which permitted corporations and unions to spend unlimited sums to influence elections and paved the way for outside electioneering groups such as super PACs and 501(c)s to accept unlimited contributions. The Supreme Court based its decision [in Citizens United] on the premise that outside entities operate independently from candidates. The court assumed that electioneering expenditures by independent entities do not risk causing corruption the way that large, direct contributions to candidates do."
The editorial also ignores the fact that the judge in the Wisconsin case, "a George Bush appointee who has regularly attended judicial junkets funded by the Koch and Bradley foundations," according to PR Watch's Brendan Fischer, has continuously ignored legal precedent and was most recently rebuked by the 7th U.S. Circuit Court of Appeals for attempting to rewrite Citizens United even more broadly than it already is. As Fischer reported, the 7th Circuit "reversed [another of] Randa's ruling[s] last month, with Judge Frank Easterbrook calling it 'imprudent,' 'unnecessary,' and 'an abuse of discretion.'" The well-known conservative judge went on to wholly reject Randa's -- and the Journal's -- interpretation of campaign finance law:
Starting with Buckley v. Valeo, the Supreme Court has stated repeatedly that, although the First Amendment protects truly independent expenditures for political speech, the government is entitled to regulate coordination between candidates' campaigns and purportedly independent groups. This is so because Buckley held that the Constitution allows limits on how much one person can contribute to a politician's campaign. If campaigns tell potential contributors to divert money to nominally independent groups that have agreed to do the campaigns' bidding, these contribution limits become porous, and the requirement that politicians' campaign committees disclose the donors and amounts becomes useless.
Randa's new ruling ignored this order, citing his own decision in the previous case even though it had been explicitly overturned by the 7th Circuit. In spite of Randa's apparent refusal to adhere to the rule of law, the Journal nonetheless praised him for "blowing the whistle" on "the latest speech assault."
What the Journal appears to be advocating for is a return to a pre-Watergate campaign finance environment -- a political climate that promoted rejected election donation schemes and quid pro quo corruption scandals. Unfortunately, a recent New York Times report suggests that the bipartisan legal reforms that were implemented and refined to prevent another Watergate are already eroding, thanks to right-wing support and litigation on behalf of corporate interests.
As Democracy 21's Fred Wertheimer said in a Times video accompanying the report, "What was at the core of the Watergate campaign finance scandals? Corporate money, secret money, unlimited contributions from individuals. What do we have today? Corporate money, secret money, unlimited contributions from individuals." Republican Sen. John McCain (AZ) agreed, saying, "We are full circle to the days prior to Watergate. There are not people walking around the streets of Washington, D.C., with briefcases full of money, but we are very close to that."