In recent cases like Citizens United and McCutcheon, the Supreme Court has been narrowing what counts as corruption in campaign finance cases to mere quid pro quo corruption. Quid pro quo is Latin meaning “this for that.” In other words only explicit exchanges of gifts for votes or campaign cash for official acts will count as corruption for the Roberts Supreme Court. But a new study entitled, “The New Soft Money” from Professor Daniel Tokaji and Renata Strause calls this narrow read of corruption into question.
Citizens United is the 2010 Supreme Court decision that allowed unions and corporations to spend an unlimited amount on political ads. A D.C. Circuit case shortly thereafter called SpeechNow which relied heavily on Citizens United paved the way for federal Super PACs —PACs that spend independently on ads and can amass unlimited donations from unlimited sources (so long as they do not include money from foreign nationals.)
In researching for “The New Soft Money,” Tokaji and Strause decided to go to the proverbial horse’s mouth to enquire about the impact of political spending by asking ex-Congressmen and ex-Senators, current Hill staffers and operatives who do outside political spending.
The facts about outside spending primarily in the 2012 Congressional races were jarring. In 2012 there was $714 million in outside spending in Congressional races and 74.22 percent was spent on TV ads. Of that spending, 77 percent was for negative ads spent against a candidate — e.g. trying to tear a candidate down instead of trying to tout the good qualities of a candidate. While the biggest spenders were traditional committees associated with the two major political parties, nipping at their heels were Crossroads GPS which spent over $48 million.
A few takeaways from “The New Soft Money” echoed concerns raised by Walter Shapiro that political spending can be one more way to part a fool from his money. As Tokaji and Strause put it, “several political operatives expressed concern that less-reputable political consultants are capitalizing on the post-Citizens United opportunities for independent spending to fleece donors….”
A lack of transparency for post-Citizens United spending was another theme highlighted in their interviews. As they explained a certain amount of money flows opaque 501(c)(4)s and that because of tax rules a newly formed 501(c)(4) could go 22 months before having to report to the IRS. As former Rep. Joe Walsh complained about dark money, “Nobody knows what’s going on.”
Outside spending also means that candidates can lose control of the message they want to communicate to voters. This loss of message control was characterized by a campaign manager in a Senatorial race with substantial outside spending as “it was like a giant poker game and I wasn’t even sitting at the table.”
While the researchers would not be expected to find any actual quid pro quos since that would have meant eliciting confessions to federal crimes, they did find what motivated some political spenders. One the people in charge of a political independent spending group described the expenditures as a classic grease payment to open doors and told Tokaji and Strause that the goals for the spending was to “pave the way for policy conversations after the elections.”
The researchers were also worried not just about the volume of the spending and the negativity but also whether it was having any impact on actors inside the Capitol. They admittedly only had anecdotes to share, but the anecdotes were troubling. For example, former Rep. Tim Holden said, post-Citizens United “any Member of Congress…is scared to death that they might get hit from the outside.” He also said that he saw Members hewing more to party lines in voting because of a worry about money. In a similar vein, “Senator Kent Conrad talked about Members ‘trimming their sails’ in response to outside spending.”
Furthermore there was the issue of whether outside spending was meant to threaten sitting lawmakers and candidates for federal office either directly or indirectly. A few of the ex-lawmakers certainly thought if the legislator took certain stances, that independent spending was likely to retaliate. Former Sen. Bob Kerrey explained, “if I vote to raise the minimum wage, I know the Chamber [of Commerce] is coming in here. I know. I don’t have to be told…” Rep. Steve La Tourette noted, “Members may perceive that if they do not take the legislative action preferred by [a given] group, then they will be targeted with retaliatory independent spending.”
The Supreme Court seems to think that independent spending categorically can’t corrupt. But to the contrary, “The New Soft Money” ends on a sobering thought that one of the highest costs of our current campaign finance system isn’t the billions of dollars being spent, but rather is the lack of public trust such spending engenders among average voters. As former Sen. Ben Nelson put it, “it’s easier for people to believe that it’s a much more a corrupt system.”
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.