Yesterday, in a 5-4 decision, the U.S. Supreme Court essentially gave corporations and unions carte blanche to spend as much as they'd like on campaigns, and to do so directly.
Because the ruling conflicts with a voter-passed 2002 Colorado amendment, which prohibited such entities from using revenues for campaign purposes, lawyer Ryan Call has already announced his intention to sue on behalf of the state Republican party and other groups to be named later. But Call says he may also target state-imposed limits on legislative candidates -- a move new Colorado Ethics Watch director Luis Toro, who we introduced you to in this January 7 blog, sees as problematic.
Toro believes "a less ambitious lawsuit probably isn't going to be that controversial after this decision" -- which he calls "terrible." However, he says, "A more ambitious one is another story."
Compared to some many Democratic commentators, who see the Supreme Court's action as cataclysmic, Toro offers a fairly measured response to the development.
"Talk about a judge overruling the will of the voters," he maintains. "Amendment 27, which the voters passed, specifically says large contributions from corporations and other moneyed special interests create a risk of corruption and distort the democratic process. The voters found that it's bad to have these large amounts of money out there -- but yesterday, five Supreme Court justices said, 'We think differently, and our five votes trump all the votes in Colorado.'"
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However, he goes on, "You saw people coming out right away saying, 'This is the end of campaign finance laws in this country,' and that's false. One clause in Amendment 27 has the same ban on so-called independent expenditure as in the McCain-Feingold law, and that's what the court overruled yesterday. If someone wanted to challenge that in Colorado, they'd have a pretty good argument. But anything beyond that is overreaching."
For instance, Toro points out that contribution limits for candidates were not before the Supreme Court -- meaning that Call and his clients can't use the ruling to justify decimating them. Moreover, the court upheld disclosure requirements, which Toro sees as "a very small silver lining in the midst of a hurricane." To him, "it seems clear that the court is saying, 'You can't keep corporate and labor union money out, but the antidote is disclosure and transparency."
Once a suit is filed in Colorado, Toro says "we would expect Attorney General John Suthers to defend the state's law with full vigor. If that doesn't happen, we'll consider all options, but we expect him to defend the amendment as attorney generals have defended ballot issues in the past, even if they didn't like them." His example: Amendment 2, an early '90s measure that outlawed "special rights" for homosexuals before being tossed by the Supreme Court.
In the meantime, Toro feels "local TV stations are going to be the big winners from this decision, because people are going to be bombarded by ads. But they should take them with a grain of salt and pay close attention to who's paying for what. I'm not going to pretend that disclosure is a substitute for the rules we've had -- but we've got to use what we've got."