Independent Spending? Who Are We Kidding?

A "dark" roll of hundred dollar bills

Last month it was reported that incoming Wisconsin Senator Ron Johnson (R-WI), “paid a personal visit” to Tom Donohue, the President of the U.S. Chamber of Commerce, “to thank him for the chamber's unsolicited support of his candidacy.”  Apparently Senator Johnson – ironically the man who replaced Russ Feingold of McCain-Feingold fame – did not get the memo that all genuflecting before campaign funders should be cloaked as “policy discussions” and conducted behind closed doors. 

Senator Johnson’s visit comes courtesy of the U.S. Supreme Court decision announced one year ago in the Citizens United v. FEC case that opened the floodgates allowing the vast reservoirs of corporate and union treasury funds to swamp federal elections.   In a jaw-dropping ruling which ignored precedent, a narrow majority of Justices gave a legal wink-and-nod to those Members of Congress who have insisted on the legal fiction that money given or spent to elect them does not buy influence. 

Of course, fictions and myths are part of the lifeblood of politics.  Politicians are infamous for promising one thing in public and doing another in private, earning the public’s general skepticism.   And sometimes these political fictions get incorporated in law.  Take, for example, electioneering ads that masquerade as “issue discussion,” with a tag line like, “Call Congressman Doe and tell him to stop beating his wife” or the federal definition of what constitutes “coordination” between candidates and outside actors.  Law deems an expenditure made in “coordination” with a candidate to be the equivalent of a contribution, subject to contribution limits and other restrictions, but in its current rules, the Federal Election Commission (FEC) has so watered down the law that only a complete idiot can’t run circles around the restrictions. 

The concept of “coordination” was created because of a deeper flaw in campaign finance law which dates back to the 1970s and the seminal Buckley v. Valeo. The myth at the core of that Supreme Court decision is that while contributions to candidates and parties are potentially corrupting and therefore can be limited, independent expenditures (IEs) do not have the same potential, and as a direct exercise of free speech rights, cannot be limited.

The logic of this aspect of the case and current law is totally untethered from reality.  In the 2012 elections, the Citizens United decision practically guarantees a flood of IEs, with -- mark my words – a torrent of scandals bound to follow.

The limit on campaign contributions from individuals, currently $2,400 per election, was upheld in Buckley under the theory that Congress could limit contributions because they are indirect speech, and while they have some “symbolic” expressive capacity related to First Amendment rights, they are not speech per se.  The Court also found that such limits were justified by the countervailing governmental interest in preventing or mitigating corruption or the appearance of corruption in our democratic system -- and particularly in our elections.  Clearly, if an individual is able to give a federal candidate very large or unlimited amounts of money, a reasonable person is not crazy to believe that the donor will have a special relationship with the candidate, leading to the appearance of corruption or even corruption itself.

But the Court then said that spending one’s own money to support or oppose a candidate cannot be limited by Congress because independent spending “does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.”  [Emphasis added.]  Since an independent expenditure is not controlled by the candidate, the Court reasoned that such spending is not likely to be corrupting or to create the appearance of corruption.  How completely stupid!

Who is going to be at the top of a federal candidate’s  list for time and attentions?  The donors who gave the maximum contributions of about $5,000?  Certainly, any candidate is grateful to those donors are they are likely to get their calls or requests for meetings answered. But what about the donor – be it an individual or group -- spending $2 million hammering my opponent or praising me?  If the candidate is a normal human being, he or she is going to feel an understandable sense of gratitude to that donor.  That’s human nature. 

Thus it is a complete fiction that an independent expenditure is necessarily less corrupting than a direct contribution.  And this fiction has become even more dangerous in a post-Citizens United world. 

One can only marvel at Justice Kennedy’s opinion in Citizens United based on such a flawed premise.  The magnitude of corporate treasury funds is a game changer when it comes to politics, and the nature of corporations – that they live in perpetuity and exist by law to maximize profit for their shareholders – means it is likely they indeed have the ability to distort the political process.

Justice Kennedy’s profound disconnect with the real world was further underscored by his misinformed belief that current disclosure laws and regulations would provide an adequate brake on possible corruption resulting from unleashing corporate treasury funds directly into the federal election system.  Wrong.  Corporations can now largely evade disclosure of their political spending by simply laundering their money through trade associations and 501c(4) groups, thus avoiding public exposure and possible backlash.

As long as the fiction of IEs persists and the illogic of Citizens United remains unchanged, our country is in for a long and dubious period equivalent to the robber baron politics of the late 19th Century.  But at least we should not fool ourselves in the meantime. 

Those who say politicians in Washington are not responsive to those who got them elected have it wrong.  They are indeed very responsive to that small elite that provided them the financial resources to get and/or stay in office.

Next time you see a TV ad paid for by some innocuous-sounding group or receive a mailer or phone call from someone who is not the candidate, just remember who the winning candidate will be visiting when they arrive back in Washington.  After all, he who pays the piper calls the tune.

A shorter version of this piece ran in the opinion section of AOL News on January 21, 2011 under the title "Citizens United 1 Year Later -- Unleash the Corruption".