Jan. 21 is an auspicious day, for two reasons. It is the date of the South Carolina primary, and it is the second anniversary of the Supreme Court’s Citizens United decision.
Two years after that landmark ruling, voters around the country have had an opportunity to witness what the court has wrought — with the latest victims being the South Carolinians subjected to millions of dollars of ads financed not by candidates but by groups with innocuous names such as Restore Our Future, Winning Our Future, Make Us Great Again, Endorse Liberty, Our Destiny, American Bridge and Red, White and Blue. The ads all have a disclaimer at the end: “Not authorized by any candidate or candidate’s committee.”
As some voters are beginning to realize, the disclaimer is nonsensical, and the groups are effectively arms of the campaigns — but without any of the restrictions or timely disclosure requirements the candidates themselves face.
"By giving corporations free rein to meddle in politics without any accountability required, just like in the robber baron days, and by defining money as speech, the court dealt a body blow to American democracy."
Restore Our Future is former Massachusetts Gov. Mitt Romney’s super PAC, run by his closest advisers. Winning Our Future is former Speaker Newt Gingrich’s super PAC, run by a longtime former aide and fueled by a $5 million contribution from Nevada billionaire Sheldon Adelson. Make Us Great Again, Texas Gov. Rick Perry’s super PAC, is run by a former lobbyist and Perry confidante who is his best friend, and so on — all the way to former Utah Gov. Jon Huntsman’s Our Destiny, supported — until he pulled the plug — by money from Huntsman’s father, and President Barack Obama’s super PAC, American Bridge, formed by liberal mogul David Brock.
Much of the money for these entities is coming from corporations, unleashed because of the Citizens United v. Federal Election Commission case. In some instances, the corporations are shells designed, when their contributions are ultimately disclosed, to hide the identities of the real donors. Remember the $1 million contributed to Romney’s super PAC by a shell corporation, which was set up only to get the million bucks and contribute it and then was dissolved? Only a public effort and digging by reporters got the donor, an old Bain Capital buddy of Romney’s, to come clean. Now the buddy, Ed Conard, is also doing active fundraising for the Romney campaign — showing how “independent” Restore Our Future is.
The candidates are doing some of their own advertising, with the still-required “stand by your ad” cameos of the candidates taking responsibility for the messages. But their ad buys are peanuts compared with the super PACs’. The relentlessly negative campaign waged in Iowa against Gingrich was done largely by Restore Our Future. Although Romney himself has appeared at a fundraiser for Restore Our Future, he said he had nothing to do with it and was powerless to stop it. At a debate, Romney said he had not seen the ads — and then cited their attacks point by point.
Other groups, such as Karl Rove’s American Crossroads GPS, set up as nonprofits to manipulate the tax code and avoid any disclosure of contributors, are also funneling money into the process.
Outside groups are outspending candidates by more than 2-to-1, and candidates for the presidency and other office are beginning to see one of the more pernicious side effects of Citizens United — that the candidates are increasingly being crowded out of the prime television ad spots they want and need to get their messages across. Super PACs and other outside groups are so awash in money that they can pay stations premiums for the top spots on shows such as “Glee” or “Modern Family,” leaving the candidates with sloppy seconds.
By giving corporations free rein to meddle in politics without any accountability required, just like in the robber baron days, and by defining money as speech, the court dealt a body blow to American democracy. Candidates no longer can focus simply on raising money for their campaigns against other candidates. Because corporations have almost unlimited sums they can put in with no notice, candidates have to raise protection money in advance just in case such a campaign is waged against them.
And in many cases, as I have written before, they will pay for protection by quietly giving companies or other interests what they want legislatively to avoid a multimillion-dollar slime campaign against them. Supreme Court Justice Anthony Kennedy, who wrote the majority opinion in Citizens United, said there could be no corruption in independent spending. What planet does he live on?
As for money being speech, imagine if your next-door neighbor puts up 50-foot speakers in his yard and blares music at ear-splitting levels and tells you that this is his speech; he is happy to let you listen to your own music on your iPod. The fact that you cannot hear your own music, much less share it with anyone else because you are drowned out is not material to Kennedy or Chief Justice John Roberts.
To be fair, some of these excesses are because of a feckless FEC’s willingness to defy the court’s clear intent on the independence of these groups and on disclosure. But the big problem came with the court in what Sen. John McCain (R-Ariz.) recently called one of the worst decisions he had ever seen (and he has seen a lot of them).
Roger Taney was the fifth chief justice of the Supreme Court, a distinguished man who also served as attorney general and secretary of the Treasury. But he, and the Taney Court, will be remembered only for the Dred Scott decision in 1857 that defined African-Americans as inferior and said they could not be considered citizens of the United States. Citizens United is not like Dred Scott, of course.
But Roberts, a distinguished man, along with Kennedy and the Roberts Court may well be remembered in history for one decision that took American politics back to the Gilded Age, corrupting elections and the policy process along the way.
The end of January marks the 36th anniversary of the Buckley v. Valeo decision, the capstone of efforts to curb the rampant legalized corruption that culminated in Watergate. To those who remember the pre-Watergate era, brace yourselves — it is on the way back.
Norman Ornstein is a resident scholar at AEI