Most of the legislative proposals congressional Democrats are considering in response to the Supreme Court's recent campaign finance ruling are likely to be upheld if adopted, according to a recent report from the Congressional Research Service (CRS), and reported by ASAE's Inroads. Congressional leaders last month released a legislative framework to serve as a guide for Democratic legislators working to blunt the impact of the Supreme Court's recent landmark decision that opens the doors to more corporate spending in elections.
The framework, drafted by Senator Charles Schumer (D-NY) and Representative Chris Van Hollen (D-MD), suggests banning expenditures from foreign interests, federal contractors and recipients of federal bailout funds; enhancing disclaimers to identify the sponsors of political advertising; enhancing disclosure requirements to mitigate the ability of corporate spenders to mask their electioneering activities through intermediaries; and ensuring that corporations are not allowed to coordinate their advertising activities with candidates and parties.
The Supreme Court triggered near universal concern from Democrats with its controversial decision in the case Citizens United versus Federal Election Commission in late January. In a reversal of two previous court decisions, the Supreme Court ruled that the government cannot restrict corporate spending in elections, and that corporations, unions, and special interest groups can use general treasury funds to pay for issue ads running just before an election. The ruling, handed down in a special session of the Court, came after the Court agreed in June of last year to re-hear a free speech challenge to provisions in the nation's campaign finance laws restricting corporate spending in support of or opposition to political candidates. The case was brought by Citizens United, which had attempted to air a documentary critical of then-Senator Hillary Clinton during the 2008 presidential primary campaign.
CRS, the research arm of the Library of Congress, prepared an analysis of the constitutional and legal issues raised by the legislative proposals discussed in the Schumer-Van Hollen framework. According to the report, proposals to increase disclaimer requirements for political communications paid for by corporations and to restrict foreign interests from influencing U.S. elections would likely be upheld by the courts. Proposals introduced in the 111th Congress to enact public financing for congressional campaigns would also likely pass constitutional muster with the courts, as long as they are voluntary, CRS concluded. The CRS analysis also includes a discussion of proposals to mandate the public disclosure of certain donors to 501(c) tax-exempt organizations beyond that required by current law, including requiring that large donors be named in an organization's political advertisements. The report concluded that "there might be constitutional limitations on the ability of Congress to require disclosure of donors who have not necessarily donated specifically for campaign-related activity, perhaps particularly if there is no mechanism by which such disclosure may be limited (e.g., through the use of a separate account for political activities)."
Download the CRS report here.