The Supreme Court’s Citizens United decision, which allowed corporate and union money to flow freely in American elections, rested on a critical assumption: that so-called outside groups would not corrupt the political system because they would be legally separated from the candidates. In his majority opinion, Justice Anthony Kennedy acknowledged that without a fire wall between the candidates and outside groups making “independent expenditures,” deep-pocketed donors would come to have an undue influence over politicians. “By definition,” Kennedy wrote confidently, “an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
In the wake of the ruling, however, candidates have been forging close bonds with the outside groups from which they are supposedly independent, but that are spending vast sums to put them in office. Often the sharing of consultants and ad makers means that any “fire wall” is merely symbolic. But there have been no consequences for these potential violations of federal law, because there’s been no enforcement of the law, thanks to partisan gridlock at the Federal Elections Commission (FEC).
The growing phenomenon has been showcased by both Republican and Democratic candidates in the marquee races of the current election cycle.
GOP Senator Mitch McConnell of Kentucky, the minority leader and the loudest voice on Capitol Hill in support of private influence over election campaigns, is relying upon a constellation of outside groups to shore up his re-election bid as he faces one of the toughest challenges in years, from Democrat Alison Lundergan Grimes. In many cases, the pro-McConnell outside groups have close personal links to the candidate and his campaign.
Take Larry McCarthy, the veteran Republican political television producer, who rose to fame in 1984 for creating the “Hound Dog” spot that catapulted McConnell to the Senate (one of the “Top 10 Game-Changing Political Ads of All Time,” according to Advertising Age). Today, McCarthy is simultaneously working for McConnell and for a Super PAC that is legally barred from coordinating with the candidate, American Crossroads, which, along with its 501(c)(4) affiliate, Crossroads GPS, has spent over $1.6 million on the Kentucky race. In the 2012 presidential election, McCarthy crafted ads for many of the leading anti-Obama Super PACs, but in deference to federal law prohibiting coordination between outside money and candidates, he did not work directly for Mitt Romney. Since then, the ad maker has apparently dispensed with any concerns about juggling work from candidates and from unregulated outside groups.
Consider, also, the fact that Josh Holmes, McConnell’s chief of staff and campaign adviser, is married to Blair Latoff Holmes, the media director of the US Chamber of Commerce, a corporate-funded nonprofit that has spent more than $1 million to boost McConnell. And that, this past summer, the Koch brothers–backed Americans for Prosperity hired a director for its newly opened Kentucky branch—the wife of a member of McConnell’s Senate staff.
Both the Chamber and Americans for Prosperity are prohibited from coordinating with McConnell’s campaign on explicit efforts to re-elect the senator. But discussions between a husband and wife would undoubtedly be regarded as beyond the purview of campaign regulators, who have already shown a lack of interest in enforcing or investigating the no-coordination rules.