Our politics is awash in cash. Super PACs supporting presidential candidates have banked more than $250 million through June 30—nearly 10 times more than at this point in the 2012 cycle. “Dark money” from anonymous donors is also surging (dark to us, of course; you can bet the candidates know). The political network of Charles and David Koch has said that it plans to spend as much as $900 million in the 2016 election cycle, raised mostly from undisclosed donors.
“For that kind of money, you could buy yourself a president,” said Republican strategist Mark McKinnon. “Oh, right,” he added. “That’s the point.”
This pollution of our democracy is the product of the Supreme Court’s appalling 2010 decision in Citizens United v. Federal Election Commission. Despite decades of warnings by the elected branches of government about the dangers of corporate political corruption, and despite more than 100 years of settled law, the conservative majority made the fateful finding that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Not stopping there, the justices went on to find that “the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
The sins of Citizens United are many, but the first is that these “facts” are bonkers. Before looking at their merits, though, remember the well-established principle that the Supreme Court is constrained by the factual record presented to it and must interpret the law based on that record. Here, the case had no record on the fundamental question of corporate political corruption. That’s sin two.
Sin three is that the absence of a record was no accident. Citizens United was initially a narrow case challenging whether the McCain-Feingold campaign- finance law prohibited the airing of an on-demand cable video critical of a candidate in the 30 days before the primary election. After the briefing and oral arguments were done, the Court issued new “questions presented,” reframing the case as a broad challenge of the government’s power to regulate corporate spending on elections. As Justice John Paul Stevens aptly explained in his dissent, “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Sin four is that we know what an extensive legislative or trial-court record concerning corruption would have revealed: Political corruption by corporate interests is a very real threat. Only in the absence of such a record was it possible to make those bogus “findings of fact.” And once they were established, the conservatives were able to get the ruling they wanted.
To open the floodgates, the Court had to find that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Otherwise, the First Amendment premise for unlimited corporate political spending would fail. This all smells very rankly of “strategery.” And that is the big sin, the one that unites them all: The majority’s ruling on Citizens United revealed a deliberate strategy to change the law in favor of powerful corporate interests.