WASHINGTON -- Five years ago this Wednesday, the Supreme Court overturned two decades of precedent in a bitterly divided 5-4 decision to open the door to unlimited spending by corporations and unions. It was the outcome of a case that began when the conservative nonprofit Citizens United, funded in part by corporate money, challenged regulation of a movie it had produced about then-presidential candidate Hillary Clinton.
Intended to free independent groups to spend without constraint, the decision, along with a subsequent lower court ruling freeing individuals to spend unlimited amounts, has largely empowered forces closely tied to individual candidates and to the political parties themselves. It has, in effect, punctured an immense hole in the 2002 McCain-Feingold campaign finance reforms that limited the raising and spending of contributions to the political parties.
An analysis of campaign finance data collected by the Center for Responsive Politics shows that 40 percent of all reported, non-party outside spending since the Supreme Court’s 2010 ruling has come from groups with deep ties to political parties or spending to support just one candidate.
The centralization of this supposedly independent money by the parties is increasing each year as more super PACs and politically active nonprofits are launched by party leaders and presidential candidates. The latest example is the establishment of the Senate Leadership Fund by allies of Senate Majority Leader Mitch McConnell (R-Ky.) to consolidate unlimited funding for the Republican Party’s Senate candidates.
The independence of these unlimited fundraising committees has been in dispute ever since the court’s ruling. Underlying the decision’s rationale is the assertion from author Justice Anthony Kennedy that “an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
Kennedy’s writing is built on the very narrow legal reading of coordination and independence formed in the 1976 Buckley v. Valeo decision. Based on the dictionary definitions of "independence" and "coordination," though, there is little doubt that some of the biggest outside spending groups are anything but independent.
The most obvious group fitting this profile is Senate Majority PAC, which the newly formed Senate Leadership Fund seeks to copy.
An invention of the Democratic Party’s permanent political class, Senate Majority PAC was created by former aides to Sen. Harry Reid (D-Nev.) to help offset the strategic advantage Republicans held in outside spending in the 2010 election immediately following the Citizens United decision.
The Associated Press reported in 2014 that Reid, then Senate majority leader, “immersed himself in work on behalf of the Senate Majority PAC.” Along with Sens. Chuck Schumer (D-N.Y.) and Dick Durbin (D-Ill.), Reid has attended dozens of meetings with donors for the super PAC since its inception.
Senate Majority PAC has also received $2 million since 2011 from leadership PACs controlled by Democratic senators.
Former Democratic Congressional Campaign Committee staffers also created the House Majority PAC at the same time that former Reid aides created Senate Majority PAC. This group focuses on House races, and its leadership has appeared at events hosted by House Minority Leader Nancy Pelosi (D-Calif.).
The boards and staff of Republican Party groups like Crossroads, Karl Rove’s super PAC and nonprofit duo, and like American Action Network and its super PAC Congressional Leadership Fund, are made up of former senators and congressmen, former Republican National Committee chairmen, executive directors of congressional party committees and former top staffers to leading lawmakers.
Like Reid, Durbin and Schumer, other lawmakers and political figures have attended donor events and fundraisers. Lawmakers are allowed to attend unlimited money fundraisers so long as they do not directly ask for more contributions larger than they would be allowed to accept for their own campaigns.
In 2014, President Barack Obama attended at least two donor events for Senate Majority PAC. Meanwhile, lawmakers like Pelosi, House Speaker John Boehner (R-Ohio), Sen. Al Franken (D-Minn.) and former Rep. Eric Cantor (R-Va.) have also appeared at super PAC events.
These extensions of party machinery are not the only questionably independent vehicles created since Citizens United. The single-candidate super PAC, an innovation in the 2012 presidential contest, has now trickled down to congressional races and even low-profile local races, such as the election for California’s state superintendent of public instruction.
That innovation took another step forward this month, with former Florida Gov. Jeb Bush’s launch of a pre-presidential campaign super PAC that can bypass all coordination and independence rules.
Many of these coordination rules, including the central one barring the collaboration of candidate and group on a specific expenditure, have already been made nearly obsolete as candidates and political parties post videos, images, strategy information, opposition research, advertising schedules and even private polling on public or semi-public online forums.
The growth of the unlimited money arms of the political parties has also led the parties to complain that they are starved of resources. This fueled the expansion of contribution limits to national party committees in the omnibus budget bill passed in December.
The launch of McConnell’s Senate Leadership Fund illustrates the strength of the ongoing post-Citizens United trend toward the further centralization of unlimited money under the party structure. Meanwhile, it's unlikely that any major 2016 presidential candidate would dare to run without a personal super PAC.
While the Citizens United decision may have empowered some otherwise less organized wealthy Americans, it has largely worked to bolster party operations and candidate campaigns. There is still little independence from the already entrenched political actors, even if these groups stay within the tight legal lines.