Two years ago the Supreme Court got it supremely wrong when it held that corporations had the same rights as people to spend money in elections. Campaign finance laws protect our democracy from corruption and preserve the integrity of our elections. These rules governing the use of money in politics were in a sorry state before Citizens United v. FEC. Here are ten ways in which the Citizens United decision has made a bad situation much worse.
1. “Independent” Spending Farce Leads To SuperPACs
The Supreme Court thought non-candidate spending would be “independent” and therefore non-corrupting. This proposition not only beggars belief, it led to the rise of SuperPACs, which are allowed to raise and spend unlimited amounts because they don’t contribute directly to candidates and are purportedly independent. These Super PACs, more than 250 of which registered between their creation in 2010 and the end of 2011, have super-charged the influence of the biggest corporations and wealthiest individuals. The Supreme Court still recognizes that contributions to candidates can be corrupting, which is why direct contributions can be limited; if outside groups coordinate spending with a candidate it is treated like a direct contribution and can also be limited. Rules exist to prevent coordination between candidates and outside groups. But these rules have been reduced to such swiss cheese that they barely maintain the pretense of independence. That is how we’ve ended up with candidate SuperPACs - founded by former campaign associates, funded by family and friends, explicitly supporting one candidate, who is allowed to fundraise for these groups himself. These candidate SuperPACs are making a mockery of contribution limits by running figure eights around and through the coordination rules; the idea that they are independent in any real sense is absurd.
2. Legal Money Laundering Increases Secret Spending
Justice Kennedy wrongly assumed that disclosure rules would reveal who was spending money to influence elections and enable voters “to make informed decisions and give proper weight to different speakers and messages.” While certain groups are required to reveal their financial backers, the Federal Election Commission’s rules fail to enforce many disclosure laws. Underlying donors to groups running political ads remain hidden through technicalities. Even when a particular group discloses its funders, the identity of the real source of the funds can be shielded. With more and more money flooding the system the need for real transparency that gets to the true source of funds has never been greater. Groups that didn’t disclose their donors report spending over $130 million in 2010, and spending through new and less accountable channels continues to rise. In the 2010 election, outside groups spent over $280 million to influence federal elections, according to the Campaign Finance Institute. This was more than double the nearly $120 million spent by outside groups on Congressional elections in 2008, and more than five times the almost $54 million spent by outside groups in 2006. Voters deserve information, and are in danger of being misled without it. For example, a campaign about a change to zoning policy favorable to Wal-Mart was run by a group calling itself “Littleton Neighbors Voting No”. There, state disclosure laws revealed that the group was funded by Wal-Mart, and not a group of concerned citizens as the name suggests. At the federal level we are not so lucky. Tax-exempt groups like 501(c)(4)s, with names like Freedom Loving Americans for Freedom, can accept unlimited money from any source without revealing the names of their donors. These groups can give that money to a PAC and, though the PAC has to disclose its donors, the source of the funds is recorded as the tax-exempt group with the inoffensive name, not the name of the real source of the money. “What’s the difference between that and money laundering?” asks leading campaign finance satirist Stephen Colbert. He reminds us that “Citizens United said that transparency would be the disinfectant, but (c)(4)’s are warm, wet, moist incubators. There is no disinfectant.”
3. Corporate Money Distorts Democracy
The Court turned its back on the reality recognized by political actors for a century: concentrated wealth has a distorting effect on democracy, therefore, winners in the economic marketplace should not be allowed to dominate the political marketplace. Before Citizens United, the Supreme Court recognized in Austin v Michigan Chamber of Commerce that the government had a compelling interest in protecting our democracy from “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” The Court that decided Austin was rightly worried that corporate wealth can dominate the political process and “unfairly influence elections.” Citizens United disavowed this understanding. The public supports the prior consensus of the Court. Shortly after the Citizens United decision, 78% of poll respondents agreed that the amount that corporations are allowed to spend in order to influence campaigns should be limited, and 70% believed that corporations have too much control over elections already. It’s hard to escape the conclusion that Government of and by big money supporters can only be for big money supporters.
4. Court is Blind to Reality of Corruption
Citizens United concluded, without evidence, that independent spending doesn’t corrupt, ignoring that ingratiation, loyalty, access, and influence are the coin of the realm in politics. Justice Kennedy blinked when he wrote that "[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt. ... Ingratiation and access, in any event, are not corruption." Citizens United overruled recent precedent, McConnell v. FEC, which had upheld the very same corporate spending restrictions. The McConnell Court had found that corruption of government is "not confined to bribery of public officials, but extend[s] to the broader threat from politicians too compliant with the wishes of large contributors." The possibility that legislators will "decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder" is a more subtle form of corruption than straight quid pro quo transactions, but is "equally dispiriting." Indeed, Justice Kennedy’s own opinion in a prior case, Caperton v. Massey Coal, recognized that an elected official could be, and would certainly appear, indebted to the largest financial supporter of his election. Massey Coal had a $50 million adverse judgment on appeal to the West Virginia Supreme Court, so the CEO invested $3 million dollars to impact the judicial election. Lo and behold, his Supreme Court candidate won, and voted to spare Massey the fine. In that case, Justice Kennedy recognized that the disproportionate independent spending to elect the judge made the judge appear biased. Just as litigants have the right to impartial justice, citizens should have a right to a representative who will fairly weigh the interests of all constituents, not merely moneyed supporters. Showing a serious tin ear to our times, the Court also decided that “[t]he appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” Eighty-seven percent of Americans polled soon after Citizens United believed that members of Congress are influenced more by donors than by constituents’ views. [more polls] Voters say "we don't have a representative government anymore" and believe that "the nexus of money and power, greased by special interest lobbyists and large campaign donations" means that "the game is rigged" and "the wealthy and big industries get policies that reinforce their advantage." Citizens United’s constricted understanding of true corruption of a representative democracy has potentially disastrous consequences for the core principal of self-government on which our democracy rests.
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