If you hate the current state of campaign finance, in which corporations and non-profits exert influence through trade associations, political action committees and so-called “Super PACs,” you can’t lay all of the blame at the doorstep of the U.S. Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, which held that corporations and labor unions have the same First Amendment rights to free speech as individuals. Nor can you say that the root of the problem was the court’s 2007 ruling in Federal Election Commission v. Wisconsin Right to Life that corporations and labor unions are permitted to spend money on election ads as long those ads do not contain “express advocacy” for or against a candidate. Instead, you have to look back to 1976, when the Supreme Court decided in Buckley v. Valeo that the constitution permits limits on direct campaign contributions to candidates by corporations. Such restrictions, the Buckley court held, do not violate the First Amendment. That bar on direct contributions to candidates, reaffirmed by the U.S. Supreme Court in 2003 in FEC v. Beaumont, has remained in place despite repeated assaults in recent years. As Rick Hasen, an election law expert at the University of California, Irvine, School of Law wrote Wednesday at his Election Law Blog, the current justices may well overturn Beaumont’s holding on direct corporate contributions to candidates if they decide to take up the issue, but so far they haven’t.
The 2012 elections are awash in secret money, with donors accountable to no one, while the national media sleeps and few voters seem to care. If money has an impact in U.S. elections, the race for the White House and other high offices may be determined by faceless donors pulling the strings from the shadows. Not exactly an image promoted by the Founding Fathers. In January 2010’s Citizens United vs. FEC, the U.S. Supreme Court ruling effectively ended the restrictions on political contributions from the general funds of corporations and unions for independent electioneering. The U.S. appeals court in Washington then used Citizens United to rule in SpeechNow.org vs. FEC that limits on individual contributions to groups making independent expenditures are unconstitutional.
With the Republican primary season winding down, it’s time to celebrate two heroes of participatory democracy, two champions of the ordinary voter, two men who did everything in their power to make the ballot box matter as much as the fundraising circuit. I speak, of course, of Sheldon Adelson and Foster Friess. Adelson is the casino billionaire whose super PAC donations enabled Newt Gingrich to upset Mitt Romney in South Carolina and give him a scare in Florida. Friess is the investment manager whose super PAC donations enabled Rick Santorum to prolong the race through February and March. Both men are controversial; both have been cited as prime examples of the corrupting influence of great wealth on our politics. But both did more than anyone else to prevent the Republican primary from turning into a straightforward “money talks” affair.
The Supreme Court’s 5-to-4 ruling in Citizens United in 2010 was shaped by an extreme view of the First Amendment: money equals speech, and independent spending by wealthy organizations and individuals poses no problem to the political system. The court cavalierly dismissed worries that those with big bank accounts — and big megaphones — have an unfair advantage in exerting political power. It simply asserted that “the people have the ultimate influence over elected officials” — as if campaigns were not in the business of influencing and manipulating voters. The flood of money unleashed this election season is a direct consequence of this naïve, damaging view, which has allowed wealthy organizations and individuals to drown out other voices in the campaign. The decision created a controlling precedent for other legal decisions that made so-called super PACs the primary vehicles for unlimited spending from wealthy organizations and individuals. In theory, they operate independently of candidates. In reality, candidates are outsourcing their attack ads to PACs, so financing a PAC is equivalent to financing a campaign.
Citizens United gets all of the attention: the protests, the whole being called the “Dred Scott of our generation” thing. But if you really think that super PACs are the root of all evil, then you ought to take your attention elsewhere. All Citizens United permitted was corporate or union independent expenditures. Under Citizens United, as long as it did not coordinate with any candidate or cause, MillerCoors can run ads, paid for from their general treasury, attacking President Obama for drinking a Bud Light at the much-vaunted 2009 White House Beer Summit. But nothing in the opinion asserts that Pete Coors could pour unlimited contributions into the coffers of, say, Americans for a Shiny America, an independent expenditure only committee that would run ads in favor of candidates who pledge to air Firefly re-runs on PBS.