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.”
There’s an irony in the Internal Revenue Service’s crackdown on conservative groups. The nation’s tax agency has admitted to inappropriately scrutinizing smaller tea party organizations that applied for tax-exempt status, and senior Treasury Department officials were notified in the midst of the 2012 presidential election season that an internal investigation was underway. But the IRS largely maintained a hands-off policy with the much larger, big-budget organizations on the left and right that were most influential in the elections and are organized under a section of the tax code that allows them to hide their donors.
Republicans in the U.S. Senate voted unanimously Monday and again on Tuesday to block adoption of the Disclose Act, Democratic Senator Sheldon Whitehouse’s legislation to require disclosure of political donations of more than $10,000 within 24 hours of the money being spent. The votes were no less remarkable for having been predictable. For years, congressional Republicans had vowed that disclosure of donations and spending was the one sure route to an honest campaign-finance system. Senate Republican leader Mitch McConnell, the field general who for two decades has organized the party’s attacks on campaign-finance regulation, including the McCain-Feingold reforms, once spoke eloquently of the sanctity of the First Amendment and of the merits of disclosure. What’s more, because McConnell in the 1990s had also come around to opposing constitutional amendments against flag burning, he had credibility as a First Amendment champion.
The Supreme Court is expected Thursday to decide on a Montana case that could undercut or reaffirm the court’s controversial 2010 campaign finance decision — and don’t think Senate Democrats aren’t paying attention. Just four and a half months shy of national elections and against the backdrop of super PAC dominance, Democrats still see campaign finance as a winning issue, though admittedly not as important as jobs or the economy. The Supreme Court is considering American Tradition Partnership Inc. v. Bullock, a case in which the Montana high court ruled that the national Citizens United v. Federal Election Commission ruling did not require the state to loosen its own campaign finance restrictions. And while a stay has been issued on that decision, most observers believe the Supreme Court will uphold its position that banning corporate political expenditures is a violation of the First Amendment’s free speech guarantee.
The Supreme Court could give Citizens United a second look this month as it decides whether to take up a lawsuit against the state of Montana, which wants its century-old state law restricting corporate influence in elections to stay in place. Montana is the only state so far to assert its existing corporate-money ban should still stand after the court ruled in 2010 that corporations could spend unlimited amounts on election ads via independent groups. The Montana Supreme Court upheld the 1912 Corrupt Practices Act, but the Supreme Court ordered that the law not be enforced while it reviewed a challenge by the conservative group American Tradition Partnership. The court is widely expected to strike the law down in keeping with its previous decision. Still, advocates view the case as their best chance yet to force the justices to re-examine elements of their landmark 2010 opinion that they say have already proven flawed in light of the subsequent deluge of campaign spending. Twenty-two states and Sens. John McCain (R-AZ) and Sheldon Whitehouse (D-RI) have signed on with Montana Attorney General Steve Bullock (D) in support of their claim.
Sen. John McCain is talking with Democrats about a joint effort to require outside groups that have spent millions of dollars on this year’s elections to disclose their donors. McCain (R-Ariz.), once Congress’s leading champion of campaign finance reform, has kept a low profile on the issue in recent years. He raised the ire of many Republicans a decade ago for pushing comprehensive reform, and many Republicans still held it against him during his 2008 presidential campaign. Good-government advocates who worked with McCain in the 1990s and early 2000s had begun to think he’d given up on the issue. But McCain said Tuesday he could join Democrats once again to form a bipartisan coalition, even though it would annoy the Republican leadership. “I’ve been having discussions with Sen. [Sheldon] Whitehouse [D-R.I.] and a couple others on the issue,” McCain told The Hill.
National: Sunshine for the Super PAC: The DISCLOSE Act Would Eliminate Anonymous Donors | Georgetown Public Policy Review
Last month, Senator Sheldon Whitehouse (D-R.I.) introduced an updated version of the DISCLOSE Act, legislation aimed at improving transparency in campaign-related spending. Senator Whitehouse’s attention is certainly warranted. Right now, corporations and labor unions can unload their treasuries into independent expenditures. Super PACs and traditional PACs are operating under the same roof. The relevant regulatory body, the Federal Election Commission (FEC), can’t decide if a candidate filming an advertisement specifically for a DNC TV spot qualifies as coordinating with the DNC. In short, campaign finance is a mess. Oddly enough, the revised edition of the Democracy is Strengthened by Casting Light on Elections (DISCLOSE) Act would not change any of that. Yet, by addressing one critical issue, the DISCLOSE Act has the potential to be the most important piece of legislation debated by Congress in 2012.