Yesterday, Rep. Bob Turner announced that he would seek nomination as the Republican challenger to Democratic Senator Kirsten Gillibrand for this November’s election. His entrance will raise the profile of a race in which Republicans have struggled to find a credible opponent for Gillibrand, who has amassed a campaign war chest of more than $10 million. A high-profile contest also raises the prospect of massive political spending. Campaign contributions by outside interest groups have skyrocketed in the wake of the U.S. Supreme Court’s 2010 Citizens United decision, which allowed corporations and unions to spend directly on elections and unleashed a flood of unlimited donations by wealthy contributors in this year’s presidential primaries.
The New York World wanted to know: How will Citizens United affect elections in New York?
According to an analysis by the Brennan Center for Justice, New York State’s “campaign finance system is so lax to begin with that Citizens United appears to have no substantive effect on New York’s existing campaign finance laws.” But federal campaigns like Turner’s are another story.
We asked Richard Briffault, a professor at Columbia Law School and an expert on campaign finance law, to explain.
Does Citizens United only affect federal elections, or does it affect New York State elections as well?
It affects all elections. What Citizens United said is that corporations cannot be prohibited from spending money independently in elections. Before Citizens United was decided, federal law prohibited corporate independent spending in federal elections. About half the states had similar prohibitions but half the states didn’t.
One of the hallmarks of this presidential election so far is the central role that has been played by super PACs. What role are super PACs likely to play in New York elections, such as the upcoming race for Kirsten Gillibrand’s Senate seat?
Remember, a U.S. Senate race would be governed by federal law. [Super PACs] have already begun to be active in congressional races in other states, most prominently in the Massachusetts Senate race. So I would expect they could play a role in New York. I think a lot would depend on whether people think that Turner is going to get some traction against Gillibrand. If he does, my guess is you’ll see a lot of super PAC money on both sides.
Could super PACs also play a role in races for the State Senate or Assembly?
They certainly could. Again, the question is if they would find races that are of interest to them.
Or even municipal races like for New York City Council?
Are there other routes beside super PACs through which you anticipate unlimited private spending on New York congressional or statewide elections?
The principal ways that private money has been coming into elections lately have been one, super PACs, and the other is through so-called 501c organizations. 501c is a provision of the tax code that covers charitable organizations. 501c has several subsections, and two important ones are 501c4, which are known as social welfare organizations, basically any organization that wants to engage in public debate, public education. And 501c6 are trade associations.
So if an organization says what we mostly want to do is public debate, voter information, public education, and they want to take out ads about that they can do that. They can also spend money discussing the strengths or weaknesses of political candidates with respect to their issues. So long as their election advertising isn’t the majority of what they do, they can remain as 501c4 committees, and as c4s they don’t have to report their contributions. So they are an attractive vehicle for people who want to put money in an election and don’t want to have that disclosed.
So for example, if there was a c4 ad supporting Gillibrand, it could say “Ask Bob Turner why he produced Rush Limbaugh”? But it couldn’t say “Vote for Kirsten Gillibrand”?
Have any New York City or New York State regulations of campaign finance been struck down or are subject to legal challenge as a result of Citizens United?
There was a big decision challenging many parts of the New York City campaign finance law this past fall, a case called Ognibene vs Parkes, in which the U.S. Second Circuit Court of Appeals upheld just about everything. Much of that had to do with the fact that New York City would no longer match contributions that came from people who did business with New York City, and in other ways tried to make it less attractive for people who do business or lobby with New York City. It lowered the campaign contribution ceiling for those entities and excluded their contributions from matching public funds. And the court upheld that.
That was the main controversial thing New York City had done, and they did that in 2008. The decision was handed down in December 2011, and that’s well after Citizens United. So I think New York City system is in reasonably good shape.
Are there other important effects that you think Citizens United will have in New York?
I think the major consequence is less a direct consequence, and more a sense that Citizens United made wealthy individuals very comfortable with contributing large sums of money through independent committees. There are still caps on how much can be given directly to the candidates. But the situation we now have, clearly at the presidential level and increasingly with respect to other federal candidates — which I think we’re likely to see at the state level too — is that the caps that applied to donations to candidates are going to become meaningless. Because it would be so easy for people to give money to independent committees which can then spend as much as they want.