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Malbin: Political Parties Can Aid Response to Court Ruling

Lawmakers are scrambling to respond to the Supreme Court’s Citizens United decision. Ideas on the table range from re-regulating corporations and enhancing disclosure to empowering citizens. The political parties ought to be major part of the mix — but only with an important caveat.

The re-regulation ideas so far have been looking mostly at corporations that do business with the government or ones with substantial foreign ownership or control. Some of the proposals are interesting and worthwhile but do nothing to affect the broad swath of all-but-electioneering issue ads that the Supreme Court put beyond Congress’ reach in its important 2007 decision in the Wisconsin Right to Life case. These ads can sharply criticize named candidates on the eve of an election for their positions on issues, as long as the ads do not call for the candidate’s election or defeat. They were protected before Citizens United and will continue.

Other proposals would extend disclosure to make it harder for corporations and others to hide their money by passing it through intermediary organizations. Unlike the first set, some of these proposals would reach nonprofit advocacy organizations to avoid hide-the-money shell games. Again, these include some ideas that probably should become law, but all would eventually run up against the borderline legal issues that protect issue speech from election rules.

Still others, with which I am identified, would counter the role of big money by stimulating the role of small donors. These were spelled out in a recent Campaign Finance Institute-American Enterprise Institute-Brookings Institution report that I co-authored with Anthony J. Corrado, Thomas E. Mann and Roll Call contributing writer Norman Ornstein, “Reform in an Age of Networked Campaigns: How to Foster Citizen Participation Through Small Donors and Volunteers.” Any use of public resources will be tough going politically, of course, but the key to these ideas are that they are about empowering citizens rather than what some denigrate as a handout to politicians.

A Party Solution?

One simple but potentially effective set of ideas involves the political parties. Depending upon the details, these ideas could be promising or deeply problematic.

Here’s the attraction. Free speech and robust political debate are desirable, but there is an asymmetry among speakers. Candidates in competitive races have to spend money throughout a campaign, building toward a closing crescendo. Independent spenders can hang back, waiting to see which races look the most promising and then target the one or few in which they have the strongest interest.

Whether through happenstance or cooperation (legal as long as it remains independent of the candidates), these spenders typically concentrate on a few races. When the independent spenders finally make a move, a candidate acting alone will find it hard to respond effectively. It is simply too late for most targeted candidates to raise the funds to distribute an adequate rebuttal on top of everything else they have to do during a campaign’s closing days.

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