Citizens United / Dark Money Still Doing the Dirty Work

New York Times – Opinion
Dedember 6 2018
By Thomas B. Edsall

When does the “appearance of influence or access” just become plain old corruption?

In the eight years since it was decided, Citizens United has unleashed a wave of
campaign spending that by any reasonable standard is extraordinarily corrupt.

To see how this operates in practice, let’s take a look at how Paul Ryan, the outgoing speaker of the House, negotiated a path — narrowly constructed to stay on the right side of the law — during a recent fund-raising trip to Las Vegas, as recounted in detail by Politico.

In early May, Ryan flew to Nevada to solicit money from Sheldon Adelson — the casino magnate who was by far the largest Republican contributor of 2018 — for the Congressional Leadership Fund, an independent expenditure super PAC. Ryan was accompanied by Norm Coleman, a former Republican Senator from Minnesota.

The Leadership Fund, according to its website, is “a super PAC exclusively dedicated to protecting and strengthening the Republican Majority in the House of Representatives.” It “operates independently of any federal candidate or officeholder.”

Adelson could not legally hand over his check to Ryan, who is a federal officeholder. Incidentally, Adelson’s company, Las Vegas Sands, reported a $700 million windfall as a result of the $1.5 trillion tax cut enacted last year by the House under Ryan’s supervision.

So how did they conduct this delicate transaction?

First, Ryan, Coleman and others “laid out a case to Adelson about how crucial it is to protect the House,” according to Politico’s report. Then Ryan “left the room, Coleman made the ‘ask’ and secured the $30 million contribution.”

Will behavior like this “cause the electorate to lose faith in our democracy?” Apparently not, according to Anthony M. Kennedy, the recently retired justice who wrote Citizens United with the backing of four of his colleagues. The crucial section of Citizens United reads as follows:

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “to take part in democratic governance” because of additional political speech made by a corporation or any other speaker.

Since 2010, when the case was decided, independent expenditures and other forms of outside spending have grown exponentially, according to OpenSecrets. In 2010, independent expenditures totaled $203.9 million; in 2016, it was $1.48 trillion. In this nonpresidential year, with final reports still to come, independent expenditures totaled at least $1.18 trillion.

The surge in outside spending unconstrained by contribution limits is a central element of current campaign finance practice.

Dan Eggen, writing in the Washington Post on July 16, 2012, described the state of campaign finance reform more than 40 years after Watergate:

Four decades later, there’s little need for furtive fund-raising or secret handoffs of cash. Many of the corporate executives convicted of campaign-finance crimes during Watergate could now simply write a check to their favorite super PAC or, if they want to keep it secret, to a compliant nonprofit group. Corporations can spend as much as they want to help their favored candidates, no longer prohibited by law from spending company cash on elections. The political world has, in many respects, come full circle since a botched burglary funded by illicit campaign cash brought down an administration.

Detractors — primarily on the left — have criticized Citizens United and a 2013 appeals court decision based on it, Free Speech v F.E.C., for opening the door to unlimited corporate spending in politics.

In fact, there are scholars on both the left and right who agree with Citizens United because they think restricting campaign spending by businesses constitutes an incursion on First Amendment rights that could lead to censorship, for example, of books and newspapers.

Laurence Tribe, a professor at Harvard Law School, and Joshua Matz, an attorney in private practice, write in their 2014 book Uncertain Justice: The Roberts Court and the Constitution that

Allowing government to control who can spend enough to get heard on a grander scale would render freedom of speech illusory.

In a 2015 law review article, however, “Dividing ‘Citizens United’: The Case v. The Controversy,” Tribe faulted Citizens United for

implausibly downplaying, and at times all but denying, the baleful corruption of American politics by means short of criminal bribery — by means that are lamentable precisely because they are lawful.

The key changes in campaign finance practices over the past eight years stem from the ruling in Citizens United and Speech Now that contributions to independent expenditure committees, including super PACs, pose no threat of “quid pro quo” political corruption. There is no corruption, Justice Kennedy wrote in Citizens United, because “an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

Roll Call, in a story headlined “Firewall Between Candidates and Super PACs Breaking Down” described the myth of non-coordination:

The supposed barrier between candidates and unrestricted super PACs is flimsier than ever. As midterm elections approach, complaints are rolling into the F.E.C. from both parties about super PACs that share vendors, fund-raisers and video footage with the politicians they support.

Along the same lines, a 2015 note in the Harvard Law Review concluded:

Candidate assistance with super PAC fund-raising efforts has pushed at the boundaries of this legally mandated independence, allowing a level of coordination that many observers believe creates a real threat of quid pro quo corruption.

The detrimental role super PACs play in campaigns prompted Albert W. Alschuler, a professor at the University of Chicago Law School, and three colleagues — including Tribe — to argue in a 2017 working paper that the negative attack ads spawned by super PACS are in themselves corrosive and provide adequate grounds to ban such PACs and the unlimited contributions that fund them:

Although these groups may not coordinate their expenditures with those of an official campaign, their managers often understand that their job is to attack an opponent while the candidate they support takes a higher road. Super PACs have been called “the attack dogs and provocateurs of modern politics.” The advertisements they produce contribute to the nation’s cynicism about politics, a cynicism that runs especially deep among young people. The candidates they support need not take responsibility for what they say, and the groups usually disappear once an election is over.

A strong critic of the Supreme Court decision, Sanford Levinson, a member of the law school faculty and the department of government at the University of Texas, argued in an email to me that:

Citizens United reveals the importance of having a Supreme Court completely devoid of a single individual who has ever participated in electoral politics. This helps to reinforce, I believe, the tendency of the Justices to think in terms of arid formalistic abstractions — including Kennedy’s views about corporations and the First Amendment — rather than address the actual realities of our political system.

Robert C. Post, a professor at Yale Law School, also views Justice Kennedy’s views as exceptionally shortsighted, declaring in a 2013 lecture that

It is the height of hubris for the Court, by a vote of five justices on a bench of nine, simply to dismiss concerns for electoral integrity on the ground that electoral integrity is a question of law rather than of social fact.

Fred Wertheimer — the president of Democracy 21, who has “participated as a lawyer in every major Supreme Court case starting with Buckley v Valeo,” a key 1976 post-Watergate campaign finance decision — took this argument a step further. He wrote me:

The Roberts majority on the Supreme Court has consistently failed to have a clue about the consequences of its campaign finance decisions and the ways in which their decisions in Citizens United and McCutcheon opened the door to the return of the corrupting contributions that led to the Watergate campaign finance scandals in the 1970s and the ‘soft money’ campaign finance scandals of the 1990s.

In McCutcheon, the court ruled that aggregate limits on the total amount an individual could give to federal candidates in every two year cycle — $123,200 in 2013-14 — were unconstitutional.

In one section of a detailed critique he sent me, Wertheimer wrote:

The Court in Citizens United stated, “Limits on independent expenditures, such as (the ban on corporate expenditures) have a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question.” This is a remarkably misguided statement in that the Court is asserting that the foundational need of our nation to be able to protect itself from the corruption of our government is outweighed by the constitutional right of a corporation to make unlimited expenditures to influence elections.

The court, Wertheimer continued, was “misguided and naïve” in making the

assertion in Citizens United without citing a single piece of evidence for this finding that “the appearance of influence or access, furthermore, will not cause the electorate to lose faith in this democracy.”

In the face of all this criticism, does Justice Kennedy, the now-retired author of Citizens United, have any second thoughts?

Rick Hasen, a campaign finance expert at the University of California-Irvine’s law school, told me that as recently as last week, Kennedy expressed no regrets. When Kennedy was asked in an interview at the University of Virginia, Hasen wrote, “if, in the wake of the huge influx of money into elections, he had any regrets about his majority opinion in Citizens United v. FEC, he said the decision ‘stands for itself’. ”

Bob Bauer, a Democratic campaign finance lawyer who is now a law professor at N.Y.U., wrote me that the Supreme Court’s

intervention in the political process has been defined by a lack of prescience or success. What the majority in Citizens United had to say about corporate independent expenditures and the risk of corruption seemed entirely divorced from reality.

The court has created

a world in which both the parties and candidates can indirectly but effectively raise and benefit from unlimited donations purportedly expended on an “independent basis.”

Justice Kennedy, Bauer continued,

put considerable faith in disclosure requirements as the antidote to any potential problems of corruption — and then had to concede later that he was surprised that disclosure is “not working the way it should.” It was fairly predictable that it wouldn’t.

Post contended that in many respects Citizens United is a failed attempt to address a problem created by Buckley v. Valeo. In his 2013 Tanner lecture, Post made the following argument:

Because Buckley prohibited the state from regulating independent expenditures while allowing it to regulate contributions, it “produced a system in which candidates face an unlimited demand for campaign funds (because expenditures generally cannot be capped) but a constricted supply (because there is often a ceiling on the amount each contributor can give) … The result is an unceasing preoccupation with fund-raising.”

(Post was quoting from “The Hydraulics of Campaign Finance Reform” by Samuel Issacharoff and Pamela S. Karlan.)

Citizens United has turned campaign finance into a system universally disdained by the public, a system even more ethically unmoored than the one obtained before Watergate in the days when, to quote Eggen again:

The money poured into Richard M. Nixon’s re-election campaign from all corners: Six-figure checks flown by corporate jet from Texas; bundles of payments handed over at an Illinois game preserve; a battered brown attaché case stuffed with $200,000 in cash from a New Jersey investor hoping to fend off a fraud investigation.

The difference now is that the checks are bigger.

How did this come about? Essentially, by legal fiat: a declaration by five Supreme Court justices that what looks, smells and feels like corruption is not in fact corruption.

Tribe has summed up the decision succinctly:

The Supreme Court’s sin in Citizens United is not that it has been wrong to recognize and embrace the libertarian values that inhere in the First Amendment. But the libertarian campaign finance law the Court has developed fails in the broader project vital to First Amendment jurisprudence: the sensitive accommodation of competing constitutional values. The Court has not only underemphasized the egalitarian strain in First Amendment law — it has rejected that strain outright. And it has failed to recognize the range of plainly legitimate conceptions of democracy that Americans hold, instead privileging one view, democracy-by-financial-contributions, above all others.

The likelihood that the current conservative majority would take into account the “egalitarian strain in First Amendment law,” as described by Tribe, is zero.

In Citizens United, the court pointedly overturned a 1990 ruling, Austin v Michigan Chamber of Commerce. In doing so, the court explicitly rejected the finding in Austin that regulation of corporate political spending is justified as a legitimate means of remedying the inequity that grows out of the fact that

state-created advantages not only allow corporations to play a dominant role in the Nation’s economy, but also permit them to use “resources amassed in the economic marketplace” to obtain “an unfair advantage in the political marketplace.”

The American system of campaign finance, undergirded by a Supreme Court whose conservative members feign innocence, has become the enabler of corrosive processes of economic and political inequality. Surely the justices are not benighted enough to believe that Paul Ryan and his ilk have no idea what they are doing.

In this context, Tribe writes:

The Citizens United Court took the narrowest possible view of corruption, maintaining that the only legitimate government interest in this field is the prevention of quid pro quo corruption. But, as many have argued in response, quid pro quo corruption is far too narrow a governmental interest to identify as constitutionally relevant. It is an interest that does not begin to reflect the full stakes at issue in the campaign finance realm: the health of American democracy itself. Unless the notion of interests sufficiently compelling to count in the First Amendment calculus is strangely truncated to exclude interests this fundamental simply because they appear imprecise or diffuse, courts must recognize a compelling interest in combating corruption broadly defined as a distortion in the political process, understood to include a deviation from the ideal of equal representation embodied in Federalist 57.

Tribe’s view is shared by Martin Gilens, a political scientist at Princeton, who wrote in “Affluence and Influence: Economic Inequality and Political Power in America”:

As resources flow toward the already most advantaged Americans, their ability to use those resources to shape policy increases. Of course rich Americans hold diverse preferences, just as the poor and the middle class. But despite some prominent liberal counterexamples, rich Americans tend to support the economic policies from which they have so greatly benefited. This raises the disturbing prospect of a vicious cycle in which growing economic and political inequality are mutually reinforcing.

We are seeing that vicious cycle in operation today, with a Supreme Court incapable of applying either reason or common sense to stop the madness.

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