Will Citizens United v. FEC Change the 2010 Elections?

By Stuart Rothenberg

Moments after the Supreme Court recognized corporations’ free speech rights in its 5-4 decision, individuals and groups from the left to the right churned out an avalanche of statements and press releases.

Democrats, liberals and “good government groups” called the decision a “disaster,” predicting that corporations would drown future elections and cash and buy elections. Conservatives and Republicans praised the decision as expanding free speech.

At times like this, it’s best to wait for people’s blood pressure to return to normal and for the hyperbole to give way to reasoned analysis.

Most, though not all, observers seem to believe that the decision will bring more money into campaigns, certainly from business but also from ideological groups and non-profit corporations.

Most, but not all, also believe that political parties and candidates are the big losers, since outside groups will now be able to spend unlimited amounts while candidates and the party campaign committees will have relatively fewer resources.

That means that outside groups will, at least in theory, be able to dictate what the candidates are talking about. And unlike the past, when advocacy ads were prohibited from airing right before a primary or the general election, corporations will be able to air express advocacy ads at anytime during the election cycle.

“Unless the laws change, the political party bas we know it is threatened with extinction,” writes veteran Republican attorneys Ben Ginsburg and William McGinley, along with others, is a memo circulated hours after the Supreme Court decision.

Writing on his political law blog expressadvocacy.com, McGinley said, “The hard money limits have the potential to force candidates and political party committees to a lesser role in the election process.”

Michael Malbin, the executive director of The Campaign Finance Institute, a non-partisan institute affiliated with The George Washington University, is more cautious about the practical effects of the decision, noting that other decisions in recent years have had a bigger impact on campaign finance.

He wonders whether business corporations, which often avoid controversies for fear of alienating consumers, will want to become major players in a U.S. House or Senate race. And he doubts that the decision will dramatically undermine political parties.

As for non-profit corporations, even they aren’t certain whether the decision means that they will spend dramatically more money in this year’s mid-term elections. “As with all non-profits, it all depends on fundraising. The court decision provides us with more options -- using ‘soft’ versus only ‘hard’ money for independent expenditures -- but not more money,” said one political non-profit decision maker.

Still, the psychological fall-out from the decision seems to add to the narrative that Republicans are more energized and the GOP is in a position to gain a significant number of House and Senate seats later this year.

“Given the possible range of outcomes from the best case scenario to the worst case scenario, this is the worst case scenario,” one Democratic operative told me after the Supreme Court’s decision. Whether that still seems true next October, it’s something else that Democrats didn’t need to worry about this year.

Educating America About a Judge and Other Summer Follies

By Stuart Rothenberg


This column first appeared in Roll Call on July 16, 2009.

In a stunning statement Monday sure to affect her confirmation prospects, Supreme Court nominee Sonia Sotomayor pledged her “fidelity to the law.” That must have been regarded as big news to the folks over at the Washington Post, since that was the bold headline on Page One of Tuesday’s newspaper.

Tomorrow’s headline in the newspaper may well be “Dog Bites Mailman,” or possibly, “Wednesday Followed Tuesday.”

The New York Times apparently wasn’t as excited by Sotomayor’s stunning admission. Its headline, “Judge Focuses on Rule of Law at the Hearings,” was more matter-of-fact, though the newspaper’s first paragraph noted that the nominee said that a judge’s job “is not to make law” but “to apply the law.” Wow.

The Boston Globe’s Tuesday headline about the hearings was a straightforward “Sotomayor Makes Her Case,” but the subhead was “Nominee Pledges Allegiance to the Law.” Double wow. Just once, mind you, I’d like to hear a Supreme Court nominee refuse to pledge allegiance to the law. Imagine if Sotomayor, for example, had said that the law was a bucket of warm spit. Now that would have been newsworthy.

One of the Senators who introduced the nominee, New York’s Charles Schumer (D), crawled way out on a limb to suggest that the judge “puts rule of law above everything else.” (Personally, I put a flawless third-to-second-to-first double play or my mother’s chopped chicken livers above the rule of law, but I suppose that disqualifies me from ever being on the Supreme Court.)

So let’s see, the big news is that Sotomayor is going to follow the law, as opposed, I guess, to following the editorials of the New York Times, the public opinion polls or the sentiments of bloggers over at Daily Kos or RedState. My, that’s a relief. I really was afraid that Sotomayor might call someone at random from the Cedar Rapids phone book to ask how to vote on a case.

We are told repeatedly that each confirmation is an opportunity to teach the American public about the political process and the law, but as far as I can tell, this confirmation, like other recent ones before it, will be little more than an opportunity for Senators to ramble on about their own views and for the nominee to duck and dodge her way to confirmation.

The fact of the matter is that you could ask anyone currently on the Supreme Court and they, too, would say they had “fidelity to the law,” are “impartial” and “apply the law,” not make it. And yet, they can have totally different views of cases and produce wildly different opinions.

No judge in his right mind who wanted to be confirmed by the Senate would testify that he planned to “make law” from the bench. But it’s done all the time. Call it “interpreting the Constitution” if you’d like, but many Supreme Court decisions have the effect of creating rights or obligations that did not exist.

For Sotomayor, the confirmation process is now about not making mistakes, not being too clear about where she stands. If this is a “teaching moment,” it’s a lesson about platitudes, vagueness and glittering generalities. By all means, let’s cover it 24/7.

The Sotomayor coverage is only the latest spectacle. This has been one of the weirder summers in recent memory, and we still have many more weeks ahead of us for other strange developments to materialize.

The media’s frenzy over South Carolina Gov. Mark Sanford’s (R) “disappearance” and subsequent acknowledgement of an affair with a woman in Argentina could have been short-circuited only by something as unexpected as entertainer Michael Jackson’s death, an ending that was as bizarre as the rest of his life was.

Since I expect Members of Congress to try to politicize everything and to interject themselves into every pop culture development, I wasn’t shocked when Rep. Sheila Jackson Lee (D-Texas) announced that she would introduce a resolution honoring the late singer.

Unfortunately, Speaker Nancy Pelosi (D-Calif.) quickly snuffed out that idea. That’s too bad. I would have loved to hear the House debate whether to pass that resolution. In fact, I would have paid to hear it. (Maybe that’s a way for Congress to raise additional revenue: pay-per-view Congressional floor debates over mind-bogglingly silly resolutions. Of course, C-SPAN might object.)

Then there was Sarah Palin, who didn’t merely announce that she wouldn’t seek re-election; she announced that she was stepping down from her post almost immediately. After she said something about lame ducks and dead fish, she went fishing.

Conservatives were outraged at the criticism of the Alaska governor, even though if the same thing had been done by a liberal Democrat they would have raked that person over the coals. And liberals slammed the governor for her action, even though if it had been done by a liberal Democrat they would have defended her just like the conservatives did.

Just another summer in your nation’s capital. Health care reform, anyone?

2009 © Roll Call Inc. All rights reserved. Reprinted with permission.

For Hill Republicans, an Opportunity to Rebrand Their Party

By Stuart Rothenberg

Republicans have begun their “rebranding” campaign by holding a town hall in Northern Virginia. Those efforts surely are necessary, since the party’s standing in polls continues to erode. But any success from the new approach is likely to proceed at a snail’s pace.

It’s difficult to change opinions that have gelled over the past few years, and GOP efforts to reach voters town hall by town hall are likely to be overshadowed by major fights on Capitol Hill, over everything from health care to spending to Supreme Court nominations.

The retirement of Justice David Souter is a case in point, and the fight over his replacement presents Republicans with an interesting conundrum.

Do Capitol Hill Republicans dig in for an Alamo-like stand, opposing President Barack Obama’s nominee right to the bitter end, or do they adopt a more cautious style in evaluating what almost certainly will be a nominee who will likely mirror Souter’s views and merely reconstitute the court’s four-person liberal bloc that already includes Justices Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens?

The problem is more complicated, of course, than merely choosing one strategy. The GOP is divided, and there surely will be a wide variety of opinions of exactly how to respond to the president’s eventual selection.

Some movement conservatives already have begun to gather ammunition for a bloody, protracted fight with the White House, no matter who the president selects, and you can be sure that bookers on the nation’s cable “news” networks will be drawn to the most vociferous and confrontational, not necessarily the most thoughtful.

In other words, Republicans won’t automatically be able to choose their own spokesmen or limit the visibility of party bomb throwers as the debate over Obama’s selection proceeds.

Still, Republican leaders can’t ignore the fact that how party leaders respond to the president’s nominee will affect how the public views the GOP, and that the heavy media coverage over the selection and the Republican response to it will do more to reinforce or change public perceptions of the GOP than will a dozen town halls across the country.

The political realities of Washington, D.C., are clear: Democrats now hold 59 Senate seats and are likely to gain a 60th sometime in the next few months. Republican opposition to a Supreme Court nominee is fruitless unless at least one Democratic Senator opposes the nomination and would side with all 40 Republicans to block a vote.

A truly controversial selection might well give Republicans enough ammunition to delay or derail a nomination, but Obama is more likely to select a nominee who, while liberal, is not an easy target for Republicans. At least that is what Sen. Jeff Sessions (R-Ala.) concluded after a conversation with the president during which Obama said he would not nominate a “bomb thrower.”

While the Republican knee-jerk reaction to the president’s selection is to fight, wiser heads might opt for a different response.

Democrats have been reasonably successful portraying the GOP as the “party of no.” While Republicans may have had good reasons for opposing the president’s stimulus bill and his budget, that’s not the point. Their opposition has allowed Democrats to portray them as heavily partisan, and voters don’t like the idea that partisanship is driving the decisions of elected officials.

April’s NBC News/Wall Street Journal survey found 55 percent of respondents saying that Congressional Republicans have been “too stubborn” in dealing with Obama, while only 25 percent said that he has been too stubborn when dealing with them. A clear plurality of those polled, 48 percent, said that Obama has “struck the right balance” in dealing with Congressional Republicans.

Expressions of concern about the Obama selection, followed by announcements by a series of key Republican Senators that they had decided to give the president every benefit of the doubt and would vote to confirm the selection might well be the best strategy for GOP lawmakers, who could both lay out their differences with the nominee (and by implication the president), yet ultimately stress their willingness to accept the president’s choice.

Accepting the inevitable is an old political trick. Republicans could look as if they were reaching out to the president even though they knew that they had few alternatives.

Of course, some on the right who relish confrontation and believe that only drawing a bright line between Obama and the GOP will create the kind of sharp contrast that will benefit conservatives and the Republican Party will be apoplectic at the thought that Republicans would accept a Supreme Court nominee without having first caused a bloodbath.

They will use the nomination as an opportunity to raise money and energize their troops. And they will receive some attention from the national media, as they both rail against Obama and Republicans who they see as insufficiently committed to the battle. But in a battle like this, not everyone will be happy.

Republican elected officials, strategists and activists would do well to look at the Supreme Court vacancy and Obama’s selection as an opportunity to start to rebrand the party — for the tenor and tone of their reaction will do more to define the GOP than will all those town hall meetings.

This column first appeared in Roll Call on May 11, 2009. 2009 © Roll Call Inc. All rights reserved. Reprinted with permission.