Sunlight Foundation Reporting Group

Panel clashes on Citizens United, agrees on real-time disclosure

A discussion about whether to limit money in politics, and how to do so, led to little consensus Tuesday morning among a panel divided between politicians who favor limits on political contributions and election law practicioners who find ways to legally get around or challenge them. But the politicians and lawyers could more or less agree on one thing: more disclosure of campaign giving. 

On one side of the argument was Sen. John McCain, R-Ariz., sponsor of the legislation that banned unlimited contributions to political parties, presidential candidate Buddy Roemer, an independent pursuing the White House through Americans Elect, and former Rep. Jane Harman, D-Calif. They criticized the role of super PACs and the flood of outside money in politics, and offered varying ideas for how to limit it.

On the other side, three election lawyers, two of them former Republican National Committee officials, and another the president of the libertarian Center for Competitive Politics, offered different reasons for lifting contribution limits to candidates or the political parties. 

The event was put on by Thompson Reuters, moderated by editor-at-large Sir Harold Evans, and held at the Newseum in Washington, D.C. 

As a result of the Citizens United ruling in 2010, "I promise you there will be huge scandals," McCain said, "because there's too much money washing around," adding that too much of it anonymous and that kind of money leads to corruption.

McCain sharply criticized the Supreme Court for its landmark ruling. It's a "combination of arrogance, naiviee and stupidity, the likes of which I have never seen." Recalling attending the Citizens United arguments, where justices ruled unconstituional part of the 2002 Bipartisan Campaign Finance Reform Act (known as McCain-Feingold) that he co-authored, he said he "couldn't believe how little these justices understood about the realities of political campaigns, including the belief somehow that corporations are people." He bemoaned the "sarcasm of people like (Justice Antonin) Scalia" and the "absolute naivete" of Chief Justice John Roberts, Justice Samuel Alito, and others. 

McCain and Harman, who now leads the Woodrow Wilson Center for International Scholars, argued that super PACs are diminishing the role of the political parties, a development they lamented. Super PACs, a product of Citizens United and another court decision, can raise and spend unlimited monies on independent expenditures.  Super PACs do not face contribution limits while the parties do, in part thanks to McCain-Feingold, which banned soft money to the national parties.

David Keating, the president of the libertarian Center for Competitive Politics, blaimed McCain-Feingold for the decline of the parties. "The McCain-Feingold bill did more to ruin the parties and the parties' vibrancy than, probably, any piece of legislation has in the last 20, 30 years," he said. The state parties are a shell of what they were, he added.

Prior to its passage, parties could accept soft money--unlimited contributions from individuals, corporations and labor unions--provided they did not use them to elect federal candidates. 

Mark Braden, a lawyer and former Republican National Committee official who coined the term soft money, said the solution is to eliminate the direct contribution limits to the political parties, which stand at $30,800 per year for individuals, chump change compared to the millions of individual donations being pumped into super PACs. Michael Toner, the former chair of the FEC and general counsel at the RNC, added that stripping contribution limits would free up members of Congress to focus on legislation rather than fundraising for five or six hours each day. 

McCain also added that it's the "worst joke in Washington" that the campaigns and super PACs are not connected, since candidates' former staffers often run the super PACs backing them. Roemer went one step further, saying that super PACs are illegal right now if President Obama is sending top campaign officials to fundraise for a super PAC supporting him, and Romney attended a super PAC fundraiser. 

Braden countered that a campaign and super PAC do not need to coordinate. They both do their own polling and "it's not rocket science to figure out what kind of message to deliver." An FEC ruling issued last year permitted candidates to coordinate their fundraising--but not their spending--with super PACs.

Roemer led the charge for greater transparency, calling for online disclosure of campaign contributions within 48 hours. Braden could accept more disclosure because its benefit outweights what he says is a cost—that it "chills political contributions." Roemer agreed with that calculation, saying there is a price to disclosure because it's made public who you have supported.

Keating was the one panelist who did not wholly agree with near real-time Internet disclosure, saying that it would be difficult for first-time challengers to understand the 48-hour reporting. He suggested a threshold of around $100,000--when candidates have raised that much, they could be required to disclose online within 48 hours.