WASHINGTON -- The two most controversial campaign financing practices of the post-Citizens United era aren’t actually the Supreme Court’s fault.
The court's conservative majority most certainly expected that its 2010 ruling, which granted First Amendment rights to corporations and equated money to speech, would unleash unprecedented amounts of political spending.
But when people rail against Citizens United these days, they’re often complaining about two things in particular: the candidate-specific super PACs that implausibly claim to be independent of the candidates they’re backing, and the political slush funds that can accept unlimited secret donations by claiming to be issue-oriented nonprofits.
Neither were inevitable byproducts of Citizens United -- or a subsequent lower court ruling.
They are things that could be fixed either legislatively, administratively, or both. But without a good shove, Congress, the Federal Election Commission and the Internal Revenue Service all appear unlikely to pursue solutions.
Some reformers are thinking that help could come from an unlikely source: the Court itself.
The Court, after all, will have a chance to re-address Citizens United in the coming weeks.
Late last year, in a move that lifted the spirits of campaign finance reformers across the nation, the Montana Supreme Court openly rebelled against Citizens United. The court voted to uphold Montana's century-old ban on corporate campaign spending, citing the state's extensive history of corporate-driven corruption.
Last month, as expected, the U.S. Supreme Court put the Montana ruling on hold. But in an accompanying statement, two liberal justices made it abundantly clear that they'd welcome the opportunity for a reality check.
Justice Ruth Bader Ginsberg, joined by Justice Stephen Breyer, wrote that granting the case a full hearing "will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway."
By stating that those sums are inarguably corrupting, Ginsberg was being particularly provocative, as that’s really what the whole argument is about.
The majority opinion in Citizens United, written by Justice Anthony Kennedy, famously declared that unlimited contributions to "independent" political groups couldn't possibly be corrupting -- or even give the appearance of corruption -- because they weren't being given to the candidates directly.
"The absence of prearrangement and coordination ... alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate," Kennedy wrote.
That assertion was -- and remains -- startling to many observers. Former Justice John Paul Stevens, in his blistering dissent on behalf of the court's four liberals, warned that ostensibly independent spending on "issue ads" had already "become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements."
But even if Kennedy had it right that non-coordination truly does preclude corruption, a small army of determined political operatives have since made a mockery of the independence requirement, creating super PACs backing a single candidate, run by people close to the candidates, using the same consultants as the campaigns. The candidates themselves have even solicited money for them from donors who have maxed out their direct contributions but still want to give more.
"These candidate-specific PACs are essentially parallel campaigns," said Colby University professor and campaign finance expert Anthony Corrado. "Calling them independent for anything other than technical reasons seems unrealistic."
Then there's the matter of transparency. The Citizens United decision strongly affirmed the need for full disclosure of political donations. But by taking advantage of a gaping loophole left open by legislative and administrative inaction, political operatives from both parties are actively soliciting and receiving unlimited amounts of money in absolute secrecy, simply by claiming to be nonprofit groups devoted to social welfare.
"Facts on the ground have changed," said Heather Gerken, a professor at Yale Law School. "Citizens United is premised on the idea that we'll be able to trace the money. And it turns out we aren't tracing the money."
NOT A REVERSAL, BUT A CLARIFICATION?
Supporters of the current campaign finance system -- and there are some -- argue that nothing has happened since Citizens United to change the majority's view.
"I don't generally accept the theory that the Supreme Court didn't know what it was doing," said Allen Dickerson, legal director at the Center for Competitive Politics, which opposes restrictions on campaign financing. "I think they were aware of the regulatory context in which they were acting." And the ruling did not include any sort of "plea for additional regulation," he said.
"I think it's very hard to imagine a situation where the Supreme Court changes its mind in two years," Dickerson added. And that's especially true, he said, when "a state essentially thumbs its nose at them."
But reformers are hoping that even if the majority does slap down Montana, maybe while they’re at it, they’ll clarify that the current campaign finance free-for-all wasn’t their idea -- and in that way pressure the other two branches to do what is necessary to make the post-Citizens United future look more like what the justices intended.
"It's unlikely that they're going to change their minds on the basic premise," longtime campaign finance reform advocate Fred Wertheimer said. "But they certainly have a responsibility to take account of what is going on in the name of independent expenditures. And if they want to maintain the integrity of this wrong idea that they have, they have a responsibility to make clear that independent means independent."
Courts can't make rules, however -- only rulings. So even if the court were to assert itself on these issues, the next step would have to be legislative or administrative action.
Congress or the FEC could establish rules that require "independent expenditure" groups to be truly independent, which would include explicitly banning solicitation by campaign or government officials, said Paul S. Ryan, a lawyer at the Campaign Legal Center.
"The court has repeatedly said, 'We support disclosure,'" said Corrado. "What that means is that an effort by Congress to strengthen disclosure laws is likely to be upheld by the court."
"Nothing in the Constitution prevents Congress from fixing these problems, or the FEC from fixing these problems," said Gerken.
Thus far, however, reform efforts have languished. "The FEC is paralyzed; Congress isn't doing anything,” Gerken said.
A transparency measure known as the Disclose Act passed the House in the summer of 2010 but was blocked by Senate Republicans. A stripped-down version was reintroduced in the House in January, and in the Senate on Wednesday. But supporters recognize that the chances of getting any Republican votes are slim.
Reform advocates have petitioned and sued the FEC to pass tough new rules in the wake of Citizens United, but its commissioners generally split along party lines about almost anything. Since five of the six sitting commissioners continue to serve despite their terms having expired, one recent petition drive urged President Barack Obama to try and break the deadlock by replacing them.
The loophole that currently lets nonprofit groups keep donations secret, even when they are funding political ads, has prompted reformers to asked the IRS to crack down on the abuse of the "social welfare" designation, possibly even by imposing heavy fines on both recipients and donors. A recent flurry of correspondence from the IRS, asking some groups applying for the 501(c)(4) status is has raised hopes that the agency might act, but it has a history of moving slowly and avoiding politically charged issues.
And there are no signs at all that the Department of Justice has opened any investigations into whether candidate-specific super PACs are violating coordination rules, another move suggested by reform advocates.
Some critics of the current system have concluded that the only way to reverse Citizens United is with a constitutional amendment that explicitly rejects corporate personhood, clearly establishes that Congress and the states can regulate campaign contributions and expenditures, or both. But the obstacles are enormous.
The most plausible source of imminent action is the Federal Communications Commission, which appears to be at least seriously considering a rule that would make real-time information about the purchase of broadcast political ads more broadly available to the public.
Many reformers think they may even be able to get the Supreme Court to change its mind eventually, just not now. They note that the Montana challenge isn't the best test case. The state's basic argument, after all, is that it deserves a special exemption.
A path to true reconsideration would likely require an argument that corruption is a problem even if it falls short of a literal quid pro quo exchange of money for a political act. "You have to change the court's mind about that," Gerken said.
And, said Corrado, "it would really have to be on the basis of strong supporting evidence, and perhaps even congressional fact-finding. There's going to have to be some factual evidence presented that this is corrupting or has some undue influence."
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