The Constitution in 2014: Election rules
In this fifth and final article in a series, Lyle Denniston explores the constitutional issues that will influence the conduct of federal elections in 2014. Earlier articles in this series covered the war on terrorism, abortion, health care and same-sex marriage.
America enters the election year 2014 with considerable uncertainty about two major constitutional issues: what will the rules be for financing the federal campaign, and what is the outlook for minority and poor voters at the ballot box? Two controversial Supreme Court decisions will have a continuing impact: the ruling four years ago in Citizens United v. Federal Election Commission, and the decision last June in Shelby County v. Holder.
It is not too much to say that the money side of national politics has been turned upside down by the Citizens United decision – a ruling that, after a century of restrictions on political financing by corporations and labor unions, turned them loose to spend as much as they liked as long as they did so independently from candidates running for Congress and the Presidency.
Interpreted by lower courts, that decision has gone well beyond the specifics of what the Supreme Court actually decided on spending freedom, and as a result contributions to election campaigns have now become almost as free as spending, leading to the rise of influence by secret “super PACS” and, in the process, to a weakening of the wall of separation between funding sources and candidates.
The changing world of campaign financing continues to prove the truth of a remark by two Supreme Court Justices a decade ago in a major funding case: “Money, like water, will always find an outlet.” No matter what restrictions Congress fashions from time to time to limit the influence of big donors, there are always new channels for the flow of money, and those are increasingly gaining approval in the federal courts.
While the Supreme Court and lower courts have continued to uphold the method of disclosure of campaign financing as the way to curb abuses, even mandated disclosure has become less effective as “super PACs” have found a loophole in the federal tax code that allows them to qualify for the kind of exemption from taxes that permits them to keep their donors secret. During 2014, the Internal Revenue Service will ponder closing that loophole, at least part of the way, but that, too, is almost certain to wind up in the courts. There are platoons of election-specialist lawyers ready and waiting to sue with each new attempt at control of the money. The cycle is now well established: a new money channel opens, a new limit is imposed, a lawsuit follows, and more often than not, the limit is narrowed or cast aside altogether – often on the theory that the First Amendment protects campaign finance as a form of “free speech.”
Even as the IRS ponders a way to limit the secrecy of major donors to politically active non-profit firms, another federal agency – the Securities and Exchange Commission – has taken off of its 2014 action agenda a request to force publicly owned corporations to disclose their political donations. The issue may not be dead, but it is certainly being postponed.
The year 2014 brings a new federal election campaign for members of Congress, and at this stage it appears that independent operators, including non-profit corporations functioning as “super PACs” or as advocacy organizations, will continue to play a dominant role. In fact, this has produced a paradox in American politics: those big-money sources are now far less restricted by finance rules than are the candidates themselves and the national political parties.
In the early months of 2014, the Supreme Court is expected to decide a test case that challenges the two-year ceilings that federal law imposes on any one donor in making contributions to support specific candidates or causes. There appears to be a better-than-even chance that wealthy donors will wind up in that case with more freedom to donate to more candidates.
One profoundly important development that will continue to unfold in the new year is the energetic challenge to the federal limits on coordination between candidates and their organizations, on one side, and, on the other, the supposedly independent “super PACs” and advocacy groups.
When other forms of campaign finance regulation were being pared down in the courts on the theory that they were no longer supported by a desire to avoid the corrupting influence of money in politics, the anti-corruption rationale had generally still been available to justify restrictions on direct coordination between funders and candidates. Now, that, too, has begun to face defeat, so that a funding source and a campaign organization can have some of the same people as their leaders, so long as they don’t actually run their campaign together as a unified whole. A federal appeals court just last month allowed that kind of linkage.
The year 2014 also is going to be a significant year for testing who can actually go to the polls and vote. A wave of new restrictions on voting qualifications, from photo ID requirements to proof of citizenship mandates, to bans on early voting, and to limits on where college students may vote, is under challenge in a variety of court cases – including two major cases pursued by the federal Justice Department, in Texas and North Carolina.
Those cases, aside from their focus on alleged voter suppression laws, will require the courts to settle an issue the Supreme Court did not resolve in its ruling last June in the Shelby County case from Alabama. In that ruling, the court struck down a key provision of the 1965 Voting Rights Act: a requirement that some states, with past histories of racial bias in voting, had to get official clearance in Washington before they could put into effect any change in election law or procedure, however minor. That “pre-clearance” requirement was in Section 5 of the 1965 law, and was considered the most effective guarantee in history for minority voting rights.
While nullifying that provision as no longer necessary, in view of the nation’s claimed progress toward racial equality, the court left undisturbed another part of the 1965 Act that permits the Justice Department to ask that a state be put back under a pre-clearance regime if it has continued to discriminate against voting on the basis of race or other factors.
The Justice Department is trying to use that very method to regain pre-clearance authority over new voting laws or methods in Texas and North Carolina, in response to a tough new voter ID law in Texas and a sweeping new package of voter-limiting restraints in North Carolina.
Decisions on that issue in lower courts could set the stage for the Supreme Court to return to the issue of government power to protect voting opportunity, especially for minorities and the poor.
Even with rulings on those issues, at least in lower courts, the passion to control elections is sure to continue to generate new campaign laws, especially by Republican-controlled state legislatures. Thus, 2014 is not likely to bring an end to the legal wars over voting.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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