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.
Now let’s return to the assertion that “the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” A 2012 poll found that approximately 70 percent of Americans believe Super-PAC spending will lead to corruption. According to the same survey, 75 percent of Republicans and 78 percent of Democrats agreed that there would be less corruption if there were limits on how much could be given to Super PACs. A June 2015 New York Times/CBS News poll found that more than 80 percent of Americans believe money plays too great a role in campaigns, while two-thirds say that the wealthy have a greater chance of influencing the electoral process than other Americans. As Justice Stevens warned in his dissent, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”
With Citizens United, the Supreme Court didn’t simply confirm its well-documented preference for ruling in favor of corporate interests. The case also fits a pattern of support by conservative justices for Republican interests in election cases, whether it’s the Rehnquist Court’s Vieth v. Jubelirer decision, which declared a field day for gerrymandering, or the Roberts Court’s Shelby County v. Holder, which gutted key voter protections and enabled conservative state legislatures to enact new barriers to minority voting (see Theodore Shaw, page 28).
So, too, did the Republican Party unduly benefit from Citizens United. Super PACs and other nonprofit organizations spent upward of $390 million in the 2012 presidential election supporting Republicans or attacking President Obama, compared with $164 million in spending by groups supporting Democrats. And so far in this election cycle, PACs and Super PACs supporting Republicans have raised 93 percent of all outside donations.
Not to worry, the Citizens United majority assured us, since a regime of prompt and effective disclosure would “provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.” In reality, of course, disclosure has completely broken down in the wake of the ruling. In the 2014 elections, the most expensive midterms in US history, The Washington Post reported that dark money made up at least 31 percent of all independent spending. And that doesn’t count spending on so-called issue ads, which is also not reported.
The Supreme Court may someday grow sufficiently sickened by the “tsunami of slime” it has unleashed and correct itself. Until then, it will fall to Congress to restore a measure of integrity to our campaign-finance system.
The DISCLOSE Act, which I have introduced in each Congress since 2012, would require organizations spending money in elections—including tax-exempt 501(c)(4) groups—to promptly disclose donors who have given $10,000 or more during an election cycle. This is not a new idea. Many Republicans, including several in the Senate, used to support disclosure— until Citizens United. Suddenly, Republicans are fighting to keep voters in the dark and have repeatedly blocked passage of the bill.
Americans of all political stripes are disgusted by the influence of unlimited secret cash in our elections. With so many candidates vying for the support of powerful interests, the stage is set for a 2016 campaign that caters to the needs of a wealthy few. It’s time for the rest of us to make our voices heard and demand a change.