In the wake of last year’s Citizen’s United ruling, there’s been much deliberation, speculation, and anticipation about how the world of federal campaign finance will be changed – and now the states are getting into the mix.  Decisions in Colorado, New Mexico, North Carolina, and Utah paved the way for Judge Terry Wooten of the United States District Court for South Carolina to rule that the state’s definition of “committee” is unconstitutional in South Carolina Citizens for Life v. KrawcheckGranting partial summary judgment in favor of South Carolina Citizens for Life (SCCL) on their constitutional claim that the South Carolina Ethics Commission was overbroad in defining “committee,” Judge Wooten may have opened the door to influential campaign contributions from organizations whose primary purpose is not to influence elections.

In 2006, SCCL planned to spend about $15,000 on voter guides with information on pro-life candidates for South Carolina’s State House District 79.  Spending this kind of money to direct readers to vote for one candidate over another would have placed SCCL under the rubric of a “committee” according to the South Carolina Ethics Act.  More specifically, this would make SCCL “a person who, to influence the outcome of an elective office, makes… independent expenditures aggregating five hundred dollars or more during an election cycle for the election or defeat of a candidate.”  Once defined as a “committee,” SCCL would then have to comply with a whole host of regulations, many of which restrict what SCCL could or could not do with the organization’s general finances.

Enter Judge Wooten.  Armed with decisions from the Fourth and Tenth Circuits (linked by state above) and the godfather of all campaign finances decisions, Buckley v. Valeo, Judge Wooten finds that defining organizations like SCCL  – whose major purpose is not the nomination or election of a candidate – as a “committee” violates protected political expression under the First Amendment.  Coming it at from a budgetary perspective, the Order gives, as an example, an entity whose major purpose is issue advocacy or community outreach.  That organization could spend only one-fifth of one percent of its annual budget on campaign related communications and still be subject to the regulatory burdens meant only for “unambiguously campaign related” materials.

While Judge Wooten gives an interesting example, there’s a substantial difference between spending $501 and the $15,000 SCCL was prepared to spend in one district for a state house election.  Isn’t the whole purpose of the Ethics Act and other campaign finance regulations to maintain transparency and ebb the flow of special interest cash into in the voting process?  Relying on dicta from the Fourth Circuit’s Leake decision, Judge Wooten addresses this issue by suggesting that the state legislature impose one-time reporting requirements similar to those required for contributions of $10,000 or more at the federal level (2 U.S.C. § 434(f)).  Until the legislature acts, however, it remains to be seen how the landscape of campaign finance within South Carolina will change.

Interestingly, this is just one of many election law cases brought in various states by lead counsel James Bopp, Jr., an ideologically conservative attorney who some have dubbed the “brainchild” behind Citizens United.  In fact, Bopp played a major role in all of the decisions Judge Wooten relied upon in South Carolina Citizens for Life.   A strong advocate of pro-life and conservative causes since his legal career began in the 1970s, Bopp’s unabashed partisanship may be why removing the cap on campaign contributions from issue advocacy groups doesn’t sit well with many.  On one hand, this is very clearly an issue of First Amendment freedom of speech rights.  On the other hand, campaigns are expensive and repetitious endeavors.  Politicians may look to the those issues’ advocates with the deepest coffers – perhaps even Bopp’s National Right to Life – to decide policy if it means keeping their seat.

If nothing else, this decision begs the question: has South Carolina’s electoral process become the latest in a succession of states to be captured by special interests?  Or is this decision a win for free speech and the right to political expression?  Either way, as one South Carolina election lawyer put it, “this could be big.”

Ashleigh Casey is a second-year student at William & Mary Law School.


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