Citizens United and super PACs have had an ugly effect on this election, but they may be the evil of two lessers. Big money is having a powerfully different effect on this year’s national election campaign. We’ve seen it in the extraordinary oscillations of the Republican primaries, largely brought about by millions of dollars of television attack ads, financed not by the opposing campaigns so much as by groups outside the parties that can say whatever they want without the candidates or the parties being called to account. These are the super PACs, political action committees on steroids. Their muscle–and some think their menace–comes from two federal court rulings in 2010, notably the Supreme Court’s decision in Citizens United,that allow them to raise as much as they can from anyone and spend as much as they like, provided–and it was regarded as a key proviso–that they are independent. For a super PAC to make contributions directly to parties or candidates, or do anything in collusion with candidates, is illegal.
It is also very naïve to believe this independence can be real. As Sen. John McCain has noted, none of the justices has ever run for political office. The senator, in this matter the intellectual heir of President Theodore Roosevelt, was the co-author of the Bipartisan Campaign Reform Act, commonly known as McCain-Feingold. The trouble of a good effort was that the reform proved unrealistic in the way it severely limited the amount of money that parties can collect for campaigns. Money, like water, seeps through any crack. McCain predicts the result of the Supreme Court action will be major scandals–what the court calls quid pro quo corruption, meaning you scratch my back and I’ll scratch yours. That will certainly be more likely if there is not full and early disclosure of where the money comes from, i.e., who is giving it, for undisclosed money is the most dangerous weakness in our system.
The high court’s majority thesis is basically that the law McCain favors is unconstitutional. The First Amendment allows two, 20, or 1,000 or more individuals to pool their resources and exercise the same rights as individuals. Individuals do not forfeit their First Amendment rights when they come together to speak collectively, this thesis holds, since the First Amendment states that “Congress shall make no law … abridging the freedom of speech” or compromising the right “to petition the government for a redress of grievances.” The court essentially said that spending is speech, in recognition of the fact that in the modern world you cannot get your political message out without money. To restrict spending, therefore, is to restrict free speech.