Citizens United, the misbegotten Supreme Court case granting corporations the right to spend unlimited money to influence elections, has entered its terrible twos.
Already, we've seen the first results of this Wild West approach to money in politics and it's not pretty. Everyone is using the biggest gun they can buy now that the Supreme Court shot the sheriff. And, as many of the guns are unregistered, anonymous character assassination abounds. The scandal of money in politics today is not what little remains illegal, but what is done legally.
Citizens United relies on two mistakes regarding the relationship between money in politics and corruption of democratic government.
First, Citizens United announced the fiction that a candidate can be corrupted if a corporation gives him money for his election, but there is no risk of corruption if a corporation spends that same money to support the candidate's election. So if Massey Energy gives $10,000 to a candidate to spend on his campaign, the candidate might feel improperly in their debt and pay that debt back through corrupt political favors. But if Massey Energy spends one million dollars on political ads to support his election, five members of the Supreme Court said that the elected beneficiary of that spending wouldn't be improperly indebted to his corporate benefactor.
Second, Citizens United says that our democratic government is not corrupted when those who can afford to spend huge sums of money on behalf of candidates have influence over or access to elected officials, and that the appearance of influence and access will not cause Americans to lose faith in their democracy.
Putting aside the reality of corruption, it certainly appears as if Newt Gingrich would be indebted to the casino magnate whose $5 million donation saved his candidacy. Wouldn't you be assiduously interested in the interests of the man whose financial support allowed you to continue your campaign?
Justice is blind, of course, but it is not meant to be blind to reality and common sense.
In the 2010 election, outside groups spent over $280 million. This was more than double the nearly $120 million spent by outside groups on congressional elections in 2008, and more than five times the almost $54 million spent in 2006. The Chamber of Commerce alone spent $32.9 million from its general coffers, and did not have to disclose the corporate sources of the funds. This was more than any other outside organization, and nearly double the amount the Chamber spent in 2008. Why would these outside spenders pony up this kind of money, if not with the understanding that political spending will advantage them? And if money buys results -- if political spending leads to political favoritism -- surely that is a corruption of democracy.
Anyone who spends money in politics should have to reveal their identity so that people can tell who is trying to influence their vote, and Citizens United relied on transparency as a panacea. But current regulations and practices flout the spirit of disclosure laws, and savvy operators have gamed the system. Big donors wishing to operate in the shadows can simply filter money through interconnected groups and the name of original donor won't be revealed. Our leading campaign finance satirist, Stephen Colbert, asks, "What's the difference between that and money laundering?"
Democracy is not a game. The electoral process is the means by which a democratic society translates political speech into concrete governmental action. Real policy choices that affect people's lives ride on the outcomes. American citizens hold vastly different political views, as is our cherished right, about the proper role of government in society, the proper level and allocation of tax revenue, and the proper level and distribution of government resources. There are competing interests fighting for primacy, and elected representatives choose between them.
Justice Kennedy, the author of the Citizens United opinion, wrote in another case, "It is our duty to face up to adverse, unintended consequences flowing from our own prior decisions." Citizens United threatens dangerous, and unintended, consequences for our democracy, as massive amounts of money flow into elections through ever-more unaccountable channels. Montana has defended its law restricting corporate political spending, and the Court will have to address Montana's findings that "the impact of unlimited corporate donations creates a dominating impact on the political process and inevitably minimizes the impact of individual citizens."
In the past the Court has recognized that our democracy needs and deserves rules to protect the political marketplace from domination by the winners in the economic marketplace. The Court has responded to sufficiently broad and deep expressions of public opinion before. After two years of growing public opposition and mounting evidence of the damage of uncontrolled money in politics, the Court should reconsider its decision in Citizens United.