As super PAC money from millionaires, billionaires and corporations dominates the 2012 election campaign and may determine the outcome, former Republican presidential candidate John McCain filed an unsolicited brief with the Supreme Court asking the Court to rethink its ruling in Citizens United that unlimited political contributions to "independent" committees by corporations (and as subsequently held by a Federal Appeals Court, wealthy individuals) do not lead to "corruption or the appearance of corruption." McCain was joined in his brief by Sen. Sheldon Whitehouse (D-RI).
At about the same time, Democratic and Republican attorneys general from 22 states and the District of Columbia filed a brief with the Supreme Court arguing that the history and present reality of political corruption in many states means that Citizens United should not apply to state campaign finance laws.
The briefs have come in response to a US Supreme Court appeal of a decision by the Montana Supreme Court upholding Montana's century-old Corrupt Practices Act banning corporations from making contributions to state politicians and "independent committees." They argue that based on the standard set by the US Supreme Court in Citizens United -- political contributions can be limited if they create corruption or the appearance of corruption -- such state-level laws remain constitutional after Citizens United. McCain's brief goes even further, arguing based on the recent history of unlimited contributions by wealthy individuals and corporations to so-called "independent" committees and super PACs, such contributions create corruption and the appearance of corruption nationally and the Supreme Court should reconsider their legality based on the Court's own standards.
In the face of these Supreme Court appeals, Barack Obama has remained oddly silent. In fact, since criticizing Citizens United in his 2010 State of the Union address in which he focused mostly on the possibility of foreign corporations donating to American political campaigns (and to which Associate Justice Alito mouthed "not true" and a Federal Appeals Court subsequently sided with Alito), President Obama has had little to say about the flood of unlimited political contributions from wealthy individuals and corporations which is distorting American democracy.
The most telling statement from the Obama camp on the subject of super PACs was a blog from Obama campaign manager Jim Messina that Obama administration officials would be encouraging wealthy donors to make unlimited contributions to Obama-supporting super PAC Priorities USA because the Obama campaign could not "unilaterally disarm" in the face of Republican Super PAC money. Given the reality of well-funded Republican super PACs influencing the 2012 election with hundreds of millions in negative advertising, one can't easily dismiss Messina's argument. On the other hand, given Wall Street's newfound hatred of Barack Obama, so far Republican super PACs seems to be out-fundraising Democratic super PACs by an order of 3-1 or 4-1. Arguably, an alternative strategy for Obama would be to refuse super PAC money and use hundreds of millions of dollars in direct contributions to his campaign to denounce Romney and the Republicans as the bought and paid for tools Wall Street and the top 0.1% of wealthiest Americans.
At the very least, if Obama is going to accept super PAC money as an unfortunate necessity, he can make restoring American democracy by getting big money out of politics a centerpiece of his reelection campaign. To back that up, President Obama has the power to issue an executive order requiring government contractors to publicly disclose their campaign donations, instead of making them in secret in exchange for favors from Congress. After pressure from business lobbyists, Obama dropped this idea.
Obama missed a golden opportunity by not joining his former rival John McCain in his brief urging the Supreme Court to revisit its conclusion in Citizens United that unlimited contributions to so-called "independent committees" do not cause corruption or the appearance of corruption.
Granted, the Supreme Court is not supposed to consider politics in deciding constitutional cases. But at the very least, the Supreme Court takes into account maintaining its political legitimacy. A recent Greenberg Quinlan Rosner poll found that 81% of voters agree that "there is too much big money spent on political campaigns and elections today and reasonable limits should be placed on campaign contributions and spending". More specifically 62% oppose the Citizens United decision and nearly half (46%) strongly oppose it. If big money in politics doesn't create corruption, in the face of public opinion it's hard to argue that it doesn't create the appearance of corruption and degrade citizens' trust in American democracy
Now imagine Barack Obama and John McCain -- the Democratic and Republican rivals in the last presidential election -- filing a joint brief with the Supreme Court asking the Court to rethink its conclusion in Citizens United using the Court's own logic. Imagine a joint press conference on the Supreme Court steps in which President Obama, Sen. McCain and the 22 attorneys general from nearly half the states explain how unlimited contributions by corporations and wealthy individuals to so-called "independent" political committees corrupts the political system and creates the appearance of corruption in which a majority of citizens are disillusioned with American democracy. It might or might not convince at least one member of the Supreme Court to change his or her mind. But it would certainly have a major national impact.
And it would put President Obama clearly on the side of restoring American democracy. It's nice that President Obama has in the past had critical words to say about Citizens United. But the time has come for him to put his money where his mouth is.
Taking American democracy back from the domination of monied special interests is the overarching issue of our time. Whatever other issue you care about -- climate change, taxes, the deficit, economic inequality, the military, the environment -- and whether you are on the left, center or right -- no solutions will be found to America's fundamental problems as long as our politicians are bought and paid for by wealthy special interests with a vested interest in protecting the status quo which enriches them.
And if President Obama manages to get reelected, if he truly wants to be a transformational president, he should make a central focus of his second term restoring American democracy, ending the corrupting influence of unlimited political contributions by wealthy individuals and corporations, and closing the revolving door through which legislators and their staffers move from Congress and regulatory agencies to multi-million dollar jobs with corporations and lobbying firms against whose selfish interests they were supposedly elected to protect American citizens.
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