The orgy of political spending that has been unleashed by super PACs in the current election cycle exceeds what a free democracy can bear. A president who is obligated to repay even a fraction of the political debts created by special interests' funding of super PACs is a president who will be greatly challenged to govern in the public interest.
This sorry state of affairs is blamed on Citizens United v. FEC, the controversial Supreme Court decision striking down, on First Amendment grounds, legal obstacles to spending on elections by corporations (and also labor unions). While there is some basis for this finger-pointing -- a lower federal court relied on CU in a decision deregulating super PACs -- CU, in fact, is not an obstacle to reining in the spending of super PACs.
On the contrary, super PACs, I believe, are vulnerable to challenge under the First Amendment because they lack the "independence" from political candidates that is an essential requirement of CU.
Super PACs are the political equivalent of hedge funds: professionally managed investment vehicles pooling the contributions of like-minded, high-net-worth individuals to support a candidate. CU opens the door to the legal argument that aggregating contributions from multiple donors into a common pool can never be independent, constitutionally-speaking, of the candidate.
Before getting deeper into this analysis, however, some truth-telling about the CU decision is in order. Hopefully, I will be seen as possessing at least a little credibility in this matter, having participated in the writing of a friend-of-the-court brief supporting the losing side in the CU case in the Supreme Court.
First of all, it is crucial to understand that CU has not opened the floodgates of campaign spending by public corporations, as was widely feared and predicted. While contributions to super PACs by wealthy individuals (and entities they control, like trusts, partnerships, privately-held companies, and the like) have reached flood levels, spending by public corporations -- corporations whose shares are traded on the major stock exchanges -- barely registers in the required disclosures of Republican and Democratic super PACs.
Public corporations just aren't using corporate funds to back candidates through super PACs. Although it's possible that public corporate money has been diverted to nonprofit entities that do not have to disclose their donors (so-called Section 501(C) 4 & 6 organizations), there is no evidence that that has happened, and it is unlikely that public companies would pump huge sums into nonprofit entities over whose spending priorities they would have so little control.
More plausible is the explanation that public corporations -- whose shareholders, roughly speaking, consist of as many Republicans as they do Democrats -- see little strategic benefit in making a big financial wager on one presidential candidate versus another. Better, from a business standpoint, for public corporations to sit on the sidelines or to contribute equally to both major parties. These corporations are more likely to use their political funds to make targeted investments in specific legislation whose costs or benefits to the corporation can be quantified.
A second misconception about CU is that it stands in the way of disclosure of political campaign contributions and expenditutes. Although CU was a 5-4 decision, eight of nine justices made clear that compelled disclosure of campaign contributions was fully permissible under the First Amendment. The bottom line is that obstacles to disclosure have little to do with the Supreme Court and everything to do with political calculations by various Washington, D.C., factions.
Congress, following the CU decision, considered legislation that would have closed major loopholes in federal disclosure requirements (particularly for the nonprofit spending entities), but the bill failed. Republicans were against it -- -despite the fact that for more than 25 years Republicans have claimed to favor disclosure over regulation on this area. Also opposed were liberal interest groups that typically complain about the inadequacy of disclosure. The ACLU, for one, claimed disclosure would infringe the rights of contributors to give money anonymously. (Translation: transparency for contributions could hurt the ACLU's own fundraising.)
More recently the broadcast media elevated self-interest to a high art in their efforts to stop the FCC from mandating disclosure, on the internet, of prices and other specifics about sales of radio and TV political ads, most of which are bought by super PACs. Fortunately, the industry's clout was not sufficient to derail the FCC initiative, which, in the future, may prove to be a rich source of data on campaign spending.
There is, in other words, no shortage of hypocrisy on both sides of the debate about disclosure of election spending after the CU decision.
Getting back, for a minute, to the proposition that the First Amendment permits limits on spending by super PACs . . . . In CU, the Supreme Court, reaffirming a key distinction in its seminal campaign finance decision, Buckley v. Valeo, over 30 years ago, held that corporations, while subject to limits in their contributions to candidates, are nonetheless free, under the First Amendment, from limits on their own "independent" expenditures that happen to support a candidate.
The question left unanswered by CU is: When is an expenditure sufficiently independent of a candidate to trigger First Amendment protection? Although federal law and FEC regulations purport to give answers, they are irrelevant (not to mention toothless, see below) because CU's requirement of independence is a requirement of constitutional dimension.
The answer, I believe, is that any aggregation of multiple contributions to an expenditure fund crosses the constitutional line. The First Amendment safeguards the right of an individual citizen (or corporation or other entity, acting unilaterally) to spend money without limit to express views about a candidate. However, the right to speak (through the purchase of TV and radio ads or otherwise) by combining one's contribution with those of others is outside the zone of First Amendment protection and subject to government limits.
Gorge Soros, on his own, is therefore free to spend millions to benefit President Barak Obama. So is Warren Buffett. However, Soros and Buffett may not combine their over-sized contributions to spend, jointly, through a super PAC. The right to spend without limit in support of a candidate is a personal, individual right -- not a group right.
Wealthy political activists who wish to join forces and organize as a group in support of a candidate can do so, but subject to the limits on contributions to a political party. The aggregation of contributions into a common fund is, in principle, no different from contributing to a political party. If, consistent with the First Amendment, contributions to a party may be capped, then caps may also be placed on contributions to an expenditure pool that combines the contributions of multiple donors.
Without a strict independence requirement, expenditure organizations will always operate as extensions of campaigns. Consider the major super PACs supporting Mitt Romney ("Restore our Future") and President Obama ("Priorities USA Action"). Although nominally adhering to FEC regulations against coordination with candidates, these super PACs are shadow campaign organizations run by political consultants whose ad-buying and other decisions are in perfect lockstep with their respective candidates. The closeness of the super PACs and campaigns renders meaningless the limits on contributions to the candidates.
The CU decision is not the constitutional nightmare that it is often claimed to be. It has not created a stampede of political spending by public corporations or thwarted meaningful disclosure requirements. And while CU gave a green light to individual political expenditures, it also contains the rationale for enforceable limits on spending by super PACs.
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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition, a nonprofit group advocating freedom of speech and government transparency. www.firstamendmentcoalition.org. The views expressed here are his alone; they do not necessarily reflect the views of FAC's Board of Directors.
Follow Peter Scheer on Twitter: www.twitter.com/1stamendmnt
Bill Moyers and Michael Winship: Pity the Poor Billionaires
Let's take this "aggregation" theory to other rights. Could the government ban groups from accepting donations to provide poor women with abortions? Or from collecting donations to buy bibles? Or ban NPR from accepting donations to broadcast? Or ban people from creating defense funds to hep them pay for a lawyer in a criminal case?
Give every voting citizen a $50 tax rebate that can only be spent by contributing it to the political candidate(s) of their choosing. And if those candidates take that money, they would be required by law to NOT take money from special interests. IOW, their campaigns would be completely funded by the public. That $50/voter adds up to being far more than the total currently spent by special interests, so the candidates that want the most money would gravitate toward it. Also, those who do not, those who take special interest money, would be so labeled.
If those candidates who are publically funded win, they go to DC working... (ready for this... drum-roll...) ...working "for the people who elected them" !!!! OMG, what a concept! AND, since it makes no sense raise $$ from special interests anymore, the wouldn't have to spend 1/2 their time doing that. Instead, they would be... (another drum-roll here...) ..."governing" !!! That's right, doing what we sent them there to do for a change. To raise money for their campaigns, they would go to their constituencies and make their case to them.
"If those candidates who are publically funded win, they go to DC working... (ready for this... drum-roll...) ...working "for the people who elected them" !!!!"
The idea that voters routinely elect people who they believe won't be working for them is insulting.
Case in point, too big to fail. 99+% of the electorate want to get rid of TBTF. All our politicians *say* they want to get rid of it too. Did they get rid of it? No. They can't because of the power of the financial system lobbiests.
When we go to vote, and see the democrat and republican names on the ballot, it's almost always to late. They've both been bought off. We very rarely have anything but a lose-lose choice. THAT's the corrupting influence of money. And that's what's running the show right now.
But what if the $50/voter thing was enacted? Out of a sense of political survival, they would gravitate toward that much larger pool of money. It would be too expensive to trump that total, so private interests wouldn't go there. The liklihood that the publically funded candidate would win would be high. And once they went to WDC, they would still be working for those who got them elected, only this time it would be us for a change.
Most vote on the lesser evil principle
Not that I'm defending Citizens United. It's the wackiest thing yet from a court that was already over the edge. I favor an amendment to overturn it. My only fear is that the five Justices who voted for CU will ignore a new amendment the way they ignore the rest of the Constitution!
Do you really believe that a politician will simply change his entire philosophy for a little money? And that he thinks the voters will let him get away with it?
What about other things of value? If someone famous endorses a candidate, or urges other people to volunteer for his campaign, that would be corrupt too under your standards.
But I'm not on the right, so....
It hinged on whether the spending was campaign-related. Would you have preferred that he spend campaign money to hush up a mistress?
An interesting parallel regarding actual speech (and if you follow the money = speech formula, applies direclty). A single person may stand up and speak freely without repercussion from the Government. Yet a crowd - whether it be a march on Washington, an Occupy event, or a Tea Party rally - can amplify that message. Are we to require that those crowds disperse, and instead have them all 'shout into the wilderness' on their own? That would violate the 'peacably assemble' clause of the 1st, and I think that it would apply to any SuperPAC as well - as long as money = speech.
That's absurd and without any basis.
If true, it means political parties are illegal! Not to mention thousands of private, non-profit groups that engage in political speech. It would mean that the groups that are working to overturn Citizens United, and collecting money to communicate their message, are illegal!
How ironic.
Why isn't YOUR GROUP subject to the same limits? You do the same thing - you take donations and use them to communicated your political message.
See, that's your problem right there. You think Super PAC donors call up Mitt and demand favors. They don't. They simply want MItt (or Obama, or whoever) to win election and do what he would do anyway. Kind of like the hundreds of thousands of small donor individuals who give to Obama and other candidates.
But if the voters don't think so, they can...vote against a candidate who they think will work against their interests.
"And I don't think voters really think out their best interests when voting."
It is absolutely, positively NOT your right to decide for them what their best interests are, or to use the government to "think" for them by deciding what they see and hear. NO.