The Courts, the Election, and Money in Politics

by Matthew Rothschild, Executive Director

June 8, 2016

One big issue in this fall’s presidential election is who will get to nominate judges to our federal courts, including the U.S. Supreme Court.

Gavel and Cash

On the urgent question of money and politics, it’s crucial that we get nominees who will overturn the notorious Citizens United decision of 2010. It was that decision that said corporations, for the first time in 100 years, could spend unlimited amounts of money to elect the candidates of their choice. We’re not much of a democracy when corporations can drown out voters.

For democracy in Wisconsin, the composition of the U.S. Supreme Court is also vitally important because of the horrendous ruling by our Wisconsin Supreme Court on campaign finance last July.

In the John Doe II case, the conservatives on our state’s high court ruled that the First Amendment forbids the Legislature from banning coordination between candidates and issue advocacy groups, and on that basis, it shut down the investigation. That claim, however, runs counter to 40 years of U.S. Supreme Court precedent.

For instance, in the landmark 1976 Buckley v. Valeo case, the court ruled that expenditures by outside groups that are coordinated with candidates amount to campaign contributions. “The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution,” the court said.

Here’s an illustration:

Say I’m running for governor in Wisconsin, and I’ve got a billionaire friend. The most he can give my campaign is now $20,000 — and I’d have to disclose that.

So I’m going to tell my friend, “Don’t be a chump. Don’t give me the $20,000. Instead, give $20,000,000 to this outside group I’m coordinating with, Badgers for Eternal Victory (BEV). And then I’ll tell BEV what ads to run, how many times to run them, and what stations to run them on. It would be just as if you gave me the $20 million, which is 1,000 times the legal limit! And the kicker is, BEV doesn’t have to disclose that you gave it a penny.”

That’s a total end-around our ability to limit the corrupting influence of big money, as well as to require meaningful disclosure so we can know who’s splattering our TV screens with mud.

Thankfully, the district attorneys of Dane County, Iowa County, and Milwaukee County have appealed the Wisconsin Supreme Court’s decision. The U.S. Supreme Court has not yet decided whether it will take up that appeal, much less how it would rule.

But it will be momentous for Wisconsin whichever way the U.S. Supreme Court goes on this one, just as it will be momentous for the country as a whole whenever the U.S. Supreme Court revisits Citizens United.

It matters who gets to sit on the federal bench. And chances are they’ll be sitting there long after whoever is elected president on Nov. 8 leaves office.

This commentary originally appeared as a column in the The Capital Times.

WDC Executive Director Matthew Rothschild
Matthew Rothschild
WDC Executive Director

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