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Supreme Court's Theory of 'Independent' Outside Money Is No Longer Operative

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The final numbers are not in yet, but we already have more than enough information to make one call in the 2012 elections: The U.S. Supreme Court's Citizens United vs. Federal Election Commission decision can be deemed a failure based on the very rationale that the court used to justify it.

In Citizens United, the court decided to permit unregulated outside spending by corporations and other entities that are not connected to candidates because it assumed such expenditures would be "independent" and, therefore, not potentially corrupting. To borrow an expression from the Watergate era, which led to our modern campaign finance rules, the court's assumption is "no longer operative."

This can be shown by looking at the activities of super PACs, which are spending the most unregulated money. About 60 percent of super PACs active this campaign cycle have devoted themselves to helping just one candidate, a report released last week by Public Citizen shows. These single-candidate super PACs have accounted for about 55 percent of all super PAC expenditures.

Many of these super PACs are founded, funded or operated by friends, family members, or political allies of the candidate they support. Such friends and family plans cannot plausibly be deemed independent. The phenomenon of super PACs being closely connected to candidates is not limited to those that sprang up to support Mitt Romney, President Obama and other presidential contenders. Many super PACs that are focused on congressional races are essentially in-house operations, as well.

Consider America Shining, a super PAC which has spent about three quarters of a million dollars attacking incumbent Rep. Ed Royce (R-Calif.). Royce's opponent, Jay Chen, said he had no knowledge of America Shining's inner workings when it ran an ad juxtaposing Royce and a detached monster hand grabbing the neck of a screaming woman. We now know America Shining is funded entirely by Chen's brother.

A similar saga unfolded in Washington state when a super PAC sent out mailings in the Democratic congressional primary so vicious that Sen. Patty Murray (D-Wash.) called for a halt to the intra-party warfare. Laura Ruderman, an opponent of the candidate targeted by the mailings, professed innocence. Days later, it turned out that the super PAC received all of its money from Ruderman's mother.

Sen. Dick Lugar (R-Ind.) was backed by not one, but two, super PACs dedicated solely to helping him rebuff his primary challenge. One had Indiana in its name, the other Hoosiers, but they were operated out of Washington, D.C., and Sacramento, Calif. Indiana Values was founded by two longtime Lugar staffers.

Super PACs in Texas, Tennessee and Pennsylvania were funded or managed by former finance chairs of the candidate they backed, to name just a few with such connections.

What all of this means is that donations to candidate-specific super PACs are effectively the same as those made directly to a candidate, satisfying the Supreme Court's longstanding test for spending that poses a risk of causing corruption and, thus, may constitutionally be restricted.

Although the five justices who signed the Citizens United decision are likely delighted by the torrents of spending they unleashed, they should be concerned about the implications of seeing their theory of independence discredited.

In the coming years, the court will inevitably face challenges to Citizens United presenting ever-mounting evidence that outside expenditures pose the same risk of corruption as unlimited direct contributions to candidates. How the court responds may help answer Americans' questions about whether it is guided by ideology or analysis.

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