Citizens United: Corrupting Campaign Clarity

Presidential politics are heating up big time, complicating Congress' tasks and overshadowing in many ways the policy dynamics in Washington.

For Republicans in Congress, the incentives to work with President Barack Obama to find positive policy compromises are, if anything, even less than they were two years ago, when Senate Minority Leader Mitch McConnell made it clear that he and his colleagues had no interest in finding common ground.

This will make even policies with serious bipartisan support much more difficult to enact. At the same time, if Republican Congressional leaders move toward compromise on issues such as the debt limit, they will face sharp criticism from GOP presidential candidates who are focused on their positioning in New Hampshire, Iowa, South Carolina and other key caucus and primary states.

At the same time, the new stage in presidential politics also reminds us that the presidential campaign funding system is badly broken.

One problem is that the structure that has existed since 1976 and that worked very well for decades was not designed to change to fit a new era and needs serious revamping. Despite some bipartisan support for reform, though, it has little chance of being taken up this year.

A second problem is the devastated landscape of campaign finance since the Citizens United decision.

I cannot recall a recent Supreme Court decision that has generated more interest and more dismay. As I travel around the country and abroad, it comes up repeatedly as a disaster in the making. For all its problems, Citizens United at least offered full-throated, 8-1 support for robust disclosure and made it clear that the decision applied only to corporate involvement in independent expenditure campaigns, not in direct involvement in the campaigns themselves.

Now comes Judge James Cacheris, a Reagan appointee on senior status. I guess Cacheris had a senior moment, or actually two of them, with his initial decision and then a reconsideration that reaffirmed, in which he first ignored the Beaumont case, prevailing Supreme Court precedent, that made it clear that corporate money could not be used directly to donate to candidates, and then dismissed the Beaumont case by saying that he could infer that Citizens United overruled Beaumont.

Judicial activism has combined with regulatory failure at the Federal Election Commission, the filibuster and every Republican in the Senate to prevent clear majorities in both chambers from enacting the robust disclosure endorsed by the court, creating an awful dynamic in politics and policymaking.

We will see it in the presidential campaigns, as both parties are scrambling to create 501(c)(4)s to amass hundreds of millions of dollars or more in secret contributions from corporations, unions and billionaires with agendas.

We are already seeing it in big, and corrupting, ways in Congress. I have had conversations with several incumbents in the Senate who are up in 2012 who say the same thing: They can handle any of the several prospective opponents they might face-- but all of them fear a stealth campaign, landing behind their lines and spending $20 million on "independent" campaigns designed to portray the incumbent as a child-molesting alien who should be behind bars, not serving in the Senate.

Most politicians understand that constituents who like them don't really know a lot about them; voters don't spend a lot of time focusing on politics and politicians. So a vicious and unrelenting ad campaign can work. What do candidates then do? All of them are working overtime to raise their own, protective war chests-- meaning every spare moment is spent on "call time," begging for money.

Ask almost any lobbyist. I hear the same story there over and over-- the lobbyist met with a lawmaker to discuss a matter for a client, and before he gets back to the office, the cell phone rings and the lawmaker is asking for money. The connections between policy actions or inactions and fundraising are no longer indirect or subtle.

Now comes the third component. As one Senator said to me, "We have all had experiences like the following: A lobbyist or interest representative will be in my office. He or she will say, 'You know, Americans for a Better America really, really want this amendment passed. And they have more money than God. I don't know what they will do with their money if they don't get what they want. But they are capable of spending a fortune to make anybody who disappoints them regret it.'" No money has to be spent to get the desired outcome.

This is what Citizens United hath wrought. It is thoroughly corrupting. And it is why, at minimum, we need to encourage the IRS to do its job and implement its own regulations related to 501(c)(4)s,

rejecting the status for sham organizations that manipulate the process only to shield the identity of donors and make big donors pay a gift tax on their sham contributions; encourage the Federal Communications Commission to put online information from TV stations about the funders of political ads; and urge the Securities and Exchange Commission to require public companies to disclose their political spending to shareholders in their annual reports and extend the current regulations for private contractors with the government who have to disclose their direct campaign contributions and expenditures to include the stealth contributions to influence campaigns.

Norm Ornstein is a resident scholar at AEI.

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About the Author

 

Norman J.
Ornstein
  • Norman Ornstein is a long-time observer of Congress and politics. He is a contributing editor and columnist for National Journal and The Atlantic and is an election eve analyst for BBC News. He served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also served as a senior counselor to the Continuity of Government Commission. Mr. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future (AEI Press, 2000); The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann (Oxford University Press, 2006, named by the Washington Post one of the best books of 2006 and called by The Economist "a classic"); and, most recently, the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann, published in May 2012 by Basic Books. It was named as one of 2012's best books on pollitics by The New Yorker and one of the best books of the year by the Washington Post.
  • Phone: 202-862-5893
    Email: nornstein@aei.org
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