Back in November of 2010, I wrote an article for Res Ipsa Loquitor titled Citizens United Ruling Brings on “Tsunami of Sewer Money.” In it, I quoted a question posed by Joe Conason in a Salon article he wrote about Citizens United : “Was the Supreme Court ruling in Citizens United naively mistaken–or cynically partisan?”
In his Citizens United opinion, Justice Kennedy wrote, “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Karl J. Sandstrom, a former FEC commissioner who provides advice to Democrats on election law didn’t seem to agree with Justice Kennedy. Sandstrom said: “The biggest change this year is that it is no longer possible to identify the individuals who are responsible for funding election communications.” Sandstrom believed that Justice Kennedy’s opinion was naïve and reflected a “very uninformed view of how disclosure works.”
Conason thought that Kennedy and the other conservative Justices on the Court never attempted “to inform themselves about the realities of donor disclosure before overturning the century-old restrictions on corporate cash.” He contended that the Justices could have easily discovered that under Section 501 c (4) of the IRS code nonprofit groups are permitted to register as “social welfare” organizations. That allows the groups to support “independent” campaign advertising without being required to disclose the names of donors—as long as political activity is not their “primary activity.”
David G. Savage thought that Kennedy and the Justices who joined him in the majority were wrong. In a Los Angeles Times article, Savage wrote the following:
“Because of loopholes in tax laws and a weak enforcement policy at the Federal Election Commission, corporations and wealthy donors have been able to spend huge sums on campaign ads, confident the public will not know who they are, election law experts say. Corporate donors have been able to hide their contributions despite the opposition of shareholders and customers—the very groups cited by Kennedy.”
Savage also pointed to the high court’s ruling as helping to fuel the rise of a number of nonprofit political actions groups—like Karl Rove’s Crossroads GPS.
We now have the recent Supreme Court ruling in McCutcheon. It certainly does appear that our country’s campaign finance laws may have been “eviscerated”—as Justice Breyer appears to believe. Breyer wrote in his McCutcheon opinion that the ruling “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
Dahlia Lithwick (Slate), in writing about Chief Justice John Roberts after the court’s ruling in the McCutcheon case, said that it seemed weird: “The man takes the Metro to work, and yet he handily dismisses what every human American knows to be true: That if dollars are speech, and billions are more speech, then billionaires who spend money don’t do so for the mere joy of making themselves heard, but because it offers them a return on their investment.”
Amy Davidson (The New Yorker) said that Roberts relied on a very narrow measure of corruption in the McCutcheon ruling: “Ingratiation and access … are not corruption.” She added that the argument, in effect, is that political parties themselves cannot be corrupted: “There is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate—for which the candidate feels obligated—and money within the base limits given widely to a candidate’s party—for which the candidate, like all other members of the party, feels grateful.”
United States of John Roberts (Mark Fiore)
Roberts wrote, “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” Roberts explains what isn’t “quid pro quo” with regard to spending large sums of money on elections:
Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. And because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.
Amy Davidson (The New Yorker) wrote the following after the McCutcheon ruling:
Citizens United or no, McCutcheon will set up a large-scale experiment in how money is used and passed around, with new kinds of mega-bundling, and how coördinated donations either impose uniformity on a party’s far-flung candidates or help to solidify regional or ideological blocs. It may be a different kind of leveller than Roberts imagines; it could also be a way to financially fuel intra-party civil wars. And that is quite separate from the new potential for influence peddling. Instead of targeting a single Congressman, you can try to buy off a whole committee.
Chief Justice Roberts and McCutcheon v. Federal Election Commission (Res Ipsa Loquitor)
Citizens United Ruling Brings on “Tsunami of Sewer Money” (Res Ipsa Loquitor)
Corporate campaign ads haven’t followed Supreme Court’s prediction (Los Angeles Times)
Justice Roberts Defends the Embattled Rich in McCutcheon (The New Yorker)
The John Roberts Project (The New Yorker)