Undoing the Damage of Citizens United
In a Montana campaign finance case, the Supreme Court has the opportunity to fix the Citizens United mess. It should do so not (just) for the sake of its own legitimacy, but for the sake of American democracy.
Next month marks the 40th anniversary of the Watergate break-in. But the burglary was the tip of the iceberg: the bigger scandal involved President Nixon's 1972 re-election campaign brazenly peddling government favors for millions of dollars of political donations.
In Watergate's aftermath and the decades since, Congress strengthened our campaign finance laws. But the Supreme Court has chipped away at those reforms, making it harder to fight the corruption that flows from money in politics. Supreme Court missteps, compounded by lower court decisions, have produced the current anything-goes campaign environment.
The Court now has an opportunity to undo some of the damage. It is considering a request to take up a case out of Montana that could clarify how much leeway the government has to regulate corrupting political money. Understanding why the Court should do so requires looking at where we are — and how we got here.
Nearly a half-year ahead of the November election, so-called super PACs have already dumped more than $110 million into this election. Nonprofit groups that refuse to disclose their donors have spent millions more. Most disturbingly, million dollar donations from actors interested in specific government actions — gifts that would raise obvious corruption concerns if directly handed to candidates — are now routinely handed to super PACs whose exclusive purpose is to elect those candidates.
Functioning as shadow campaigns, these groups exist solely to elect a specific candidate. They are operated by the candidate's close friends and most trusted political advisors. Candidates and their super PACs share vendors, consultants, messages, and advertising footage. They closely coordinate their efforts: during the Republican presidential primaries, when candidates' own funds started to dry up, their super PACs repeatedly stepped up to air a barrage of attack ads. Most egregiously, candidates and their senior campaign staff appear at the super PACs' fundraising events and solicit funds for them. As Mitt Romney candidly stated: "We raise money for super PACs. We encourage super PACs. Each candidate has done that."
Perhaps most significantly, the super PAC campaign arms have rendered contribution limits to candidates essentially meaningless. Corporations and unions, prohibited under federal law from donating directly to candidates, have skirted the ban by giving to their super PACs — sometimes in million-dollar amounts. Individuals, too, have flouted the individual contribution limit, donating the maximum $2,500 to a candidate's campaign, and then turning around and writing another check to his super PAC. Last year, for example, 84 percent of donors to Mitt Romney's super PAC had given the maximum donation to Romney's primary campaign — including five contributors who each gave the super PAC $1 million or more.
Some have blamed the Supreme Court's Citizens United decision for these groups that solicit — and spend — unlimited sums to elect candidates. But Citizens United expressly declined to address the constitutionality of campaign contribution limits. While the decision gave corporations and unions the right to spend unlimited sums on electioneering, it said nothing about whether they could contribute without limit to groups working as de facto arms of the candidate's campaigns.
That said, Citizens United did play a part in permitting the emergence of super PACs. In the decision, Justice Anthony Kennedy wrote that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." Some lower courts read this statement as saying that election spending by non-candidate groups cannot corrupt, regardless of the groups' ties to candidates. If the Supreme Court had dictated that there could be no corruption concerns, these courts reasoned, then there could be no limits on the size of contributions to them. Thus was born the super PAC.
The problem is that these lower courts, in striking down contribution limits to groups that are anything but genuinely independent, extended Citizens United beyond the breaking point. The Montana case gives the Supreme Court a chance to put campaign finance law back on the right track. It's vitally important that it does so: public confidence in our country's elections and government has been severely undermined by legal developments after Citizens United.
Last week, Montana's Attorney General filed a brief calling on the Court to let stand his state's century-old ban on corporate electioneering. The law was adopted by Montana voters who'd watched out-of-state copper interests capture the state's government and buy off its judges. In a friend-of-the-court brief, the Brennan Center for Justice and leading constitutional law scholars argued that, contrary to Justice Kennedy's statement in Citizens United, recent developments establish clearly that fundraising and spending by groups like super PACs can, and does, give rise to corruption and widespread perceptions of corruption.
The Supreme Court should right this disastrous mess — not (just) for the sake of its own legitimacy, but for the sake of American democracy. Broad segments of the public believe the officials we elect in November will ignore the public interest to serve the few donors whose million-dollar contributions fueled the shadow campaigns that elected them. Now it's up to the Supreme Court.