Recently, some Republicans have begun to reconsider the merits of the Supreme Court's ruling in Citizens United v. Federal Election Commission. Just yesterday, John McCain said this:
"As you know, I think the outside super PACs and others is so disgraceful that I'm ashamed of the United States Supreme Court in their decision on United," Sen. John McCain said Wednesday, in reference to the 2010 Citizens United decision that opened the door to unlimited spending by corporations in elections.
Jonathan Chait recently did a piece for New York magazine that explained how the Supreme Court's ruling has created a nightmare for the Republican Establishment. Here's his lede.
The Republican elite is justifiably terrified at the prospect of Newt Gingrich capturing the nomination. Gingrich, as I’ve argued, is riding the wave of revulsion and contempt for President Obama that this same Establishment has stoked for three years. But his campaign is also blowback to the party Establishment in another, more mechanical way. His campaign is surviving entirely as a result of the Citizens United ruling, decried by liberals and celebrated by conservatives, which allows unlimited campaign expenditures, as long as they’re not coordinated with campaigns.
Gingrich's campaign is surviving almost entirely because of one donor. You can learn about Sheldon Adelson here. He's one of the richest people in the country, and he has a special fondness for Mr. Gingrich. He and his wife have already donated $10 million to a SUPER PAC called “Winning Our Future" that is dedicated to supporting Gingrich's presidential bid. There is nothing preventing the Adelsons from giving Gingrich $10 billion if they want to. And they don't have to tell us about it either. We only know they gave this money because they wanted us to know. This would not have been legal prior to the Citizens United ruling.
Writing recently in the Huffington Post, Jim Worth noted:
Republicans applauded the Supreme Court ruling in January, 2010 seeing an opportunity to spend millions of dollars to destroy the liberal message and Democratic candidates without repercussions and incarceration.
They are now feeling the unintended consequences of the wrongful interpretation of law forced on the American people by 5 men in black robes...
...The onslaught of derisive and acerbic ads exposes the absurdity and destructive nature of the Citizens United ruling.
This Republican presidential carnival has become a game for billionaires with each claiming a candidate and maneuvering to muddy opponent's credibility.
Despite this evident schadenfreude, liberals are not celebrating the Citizens United ruling. It was a transparent effort by the conservative majority on the Supreme Court to tip the political playing field away from progressive policies and toward policies favored by billionaires and corporate America. It was a reaction to Barack Obama's historic 2008 campaign for the presidency. Obama was able to win the trust and support of Wall Street, but, at the same time he was able to build a major grassroots army of dedicated supporters who gave hundreds of millions in small donations. Ironically, the same financial crisis that assured Obama's election put him in a position to alienate many of his supporters by bailing out Wall Street and to alienate Wall Street by insisting on stronger regulation. But, if Obama's winning coalition is a bit torn and frayed, the example was fresh in the minds of the conservatives on the Supreme Court when they made their ruling in the Citizens United case. It didn't occur to them that the Republican Establishment and the financial elite are not synonymous. They didn't think that their ruling would cause the Republican Establishment to lose control of their nominating process. They couldn't foresee what Jim Worth observed:
The reward of an obviously flawed Supreme decision is what it's doing to the Republican field.
All the negative ads have done is make these unqualified candidates look more unqualified, bad candidates look worse.
SUPER PAC's outspent the actual campaigns in South Carolina by a 2:1 ratio, leading to much lamentation in the January 16th debate as the candidates asked each other to denounce their own committees even though they are not legally allowed to coordinate with them.
“We all would like to have super PACs disappear, to tell you the truth,” Romney said at a debate Monday night in Myrtle Beach, S.C.
But then he embraced them Tuesday morning: “It’s not that I don’t support super PACs. We raise money for super PACs. We encourage super PACs. Each candidate has done that.”
The waffling underscores the awkward relationship between the groups and Romney, Newt Gingrich and other GOP candidates, who are simultaneously distancing themselves from, and taking advantage of, the super PACs without running afoul of campaign finance rules.
An Associated Press study of the Iowa and New Hampshire results showed that SUPER PAC spending correlated with voter support more than any other factor, like making campaign appearances or a town's historic voting patterns. Clearly the SUPER PACs are effective, but that doesn't mean that the candidates like the new system. Mitt Romney, for example, doesn't like that he can't coordinate with his SUPER PAC and would prefer to be able to raise unlimited corporate cash directly into his campaign coffers, "I would like to get rid of the campaign-finance laws that were put in place," he said at a debate Monday. "... Let people make contributions they want to make to campaigns, let campaigns then take responsibility for their own words and not have this strange situation we have."
Another reason Romney doesn't like the system is that it may cost him the nomination. Recently, MSNBC correspondent Andrea Mitchell reported the following:
"I talked to a top Romney adviser tonight who said, ‘Look, if Mitt Romney cannot win here in Florida then we’re going to have to try to reinvent the smoke-filled room which has been democratized by all these primaries. And we’re going to have try to come with someone as an alternative to Newt Gingrich who could be Jeb Bush, Mitch Daniels, someone.’ Because there is such a desperation by the so-called party elites, but that’s exactly what Gingrich is playing against."
Republicans and Democrats hate the Citizens United ruling for different reasons, but it's important that they both hate it. It means there might be some hope of doing something about it. Now, the easiest way to change the law is to replace one of the five conservative Supreme Court Justicies (Alito, Kennedy, Roberts, Scalia, or Thomas) with a Justice who thinks they ruled incorrectly. If the president gets a second term in office, there is a decent actuarial chance that he'll get that opportunity. However, as long as the ruling remains the law of the land, the only way to change it is to pass a constitutional amendment. Organizations like Public Citizen and Common Cause are already organizing events to build support for an amendment-drive. Democracy for America has collected over 100,000 signatures in support of overturning Citizens United through a constitutional amendment. DFA's members are in the process of delivering these signatures to their U.S. Senators in the coming weeks. These efforts paint a clear picture. The ruling is unpopular with the public. It has created a system that the candidates don't like. If, say, Newt Gingrich wins the GOP nomination and then loses the election very badly, the Republican Establishment may become amenable to the idea that Citizens United was wrongly decided. If that doesn't happen, perhaps we can build enough public support to get a constitutional amendment. It looks bleak right now, but the consequences of the ruling are so obviously detrimental to our democracy that I have a feeling that opposition will continue to build.
The Democrats will, in the meantime, seek to increase the transparency of this unlimited campaign spending. In 2010, the Democrats came within one vote in the Senate of passing the DISCLOSE Act. They will try to pass a slightly watered down version this year. In the House, Chris Van Hollen will take the lead. Right now, as I write this, Sen. Jeff Merkley is talking about a Senate version of the bill. Sens. Franken, Murray, Blumenthal have already spoken today in support of added transparency.
They have the people on their side. Corporations are not people. Let me quote from John Paul Steven's dissent:
Business corporations must engage the political process in instrumental terms if they are to maximize shareholder value. The unparalleled resources, professional lobbyists, and single-minded focus they bring to this effort, I believed, make quid pro quo corruption and its appearance inherently more likely when they (or their conduits or trade groups) spend unrestricted sums on elections.
It is with regret rather than satisfaction that I can now say that time has borne out my concerns. The legislative and judicial proceedings relating to BCRA generated a substantial body of evidence suggesting that, as corporations grew more and more adept at crafting “issue ads” to help or harm a particular candidate, these nominally independent expenditures began to corrupt the political process in a very direct sense. The sponsors of these ads were routinely granted special access after the campaign was over; “candidates and officials knew who their friends were,” McConnell , 540 U. S., at 129. Many corporate independent expenditures, it seemed, had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements. In an age in which money and television ads are the coin of the campaign realm, it is hardly surprising that corporations deployed these ads to curry favor with, and to gain influence over, public officials.
When Stevens' says that corporations must "engage the political process in instrumental terms," he means that they must assure themselves and their shareholders a return on investment. If there is no quid pro quo, then the corporation is not being a good steward of the shareholders' money, which is in itself a crime. If you think about it, corporate funding of campaigns is criminal by definition. Either they get an illegal benefit or the giving is itself illegal.
As for private citizens like the Adelmans, they want to move the U.S. Embassy in Israel from Tel Aviv to Jersusalem. If Gingrich is elected president, that might happen not because it is a good idea but because Gingrich would be indebted to two people who made his presidency possible.
Something has to change. This is insanity.
If you support a constitutional amendment that says corporations are not people, sign the petition and it will be delivered to your U.S. Senators.
[In the interests of full disclosure, I am consulting with Democracy for America on issues that may be mentioned on this blog. While I will continue to express my own views and opinions, any articles that may present a conflict of interest will contain this disclosure.]