The supposed “independence” of the super PACs reaches barely a legal fiction. Former aides or fundraisers run the entities. The campaigns alert donors as to which “independent” entity is designated for support. President Obama is delegating Cabinet and White House officials to attend fundraisers for Priorities USA Action, his “independent” super PAC. His 2008 campaign director, David Plouffe, now coordinating messaging in the White House, is out helping to raise the money.
Ahead of Super Tuesday, the Romney campaign spent little money outside of Ohio. Not surprisingly, his “independent” super PAC ramped up its spending in the other states to spearhead the Romney attack. The Gingrich campaign took this to the point of absurdity, running no advertising in the Super Tuesday primaries while his super PAC, Winning Our Future — funded almost entirely by one donor — carried the banner, spending $3.7 million in the primary states.
The alleged independence of the super PACs lets them do the dirty work without the candidate taking responsibility. The result is an increasingly ugly campaign, deluged with negative attack ads. In Ohio, a key battleground state, the groups associated with Romney, Gingrich and Santorum spent about $4 million in advertising. Of the 11 presidential election commercials run on Ohio TV since February 1, all but one were negative attack ads, according to the Kantar Media’s Campaign Media Analysis Group.
What we’ve seen, however, is merely the first glass before the bender, the blowout that will come this fall. The fall election will feature an estimated $3 billion in negative ads, many purveyed not by super PACs, which at least have to reveal their donors, but by associated “advocacy groups” that are not required to do so. That is where the corporations and the Wall Street barons are likely to play. The candidates will know who anted up the big money, but the voters will not.
The infamous Supreme Court decision in Citizens United v. FEC, ruling that corporations as well as individuals could give unlimited amounts to “independent” expenditure entities, opened the floodgates. Writing for the majority, Justice Anthony Kennedy ruled that corporations had the same rights as people to speech, and thus to unlimited expenditures in campaigns. That right might be balanced, he admitted, by the public concern about corruption of elections and officials. Then he bizarrely concluded — without bothering to offer any evidence — that independent corporate expenditures in elections, even in secret, “do not give rise to corruption or the appearance of corruption.”
The Citizens United decision was to our democracy what congressional repeal of the Glass-Steagall regulation of banking was to our economy. In both cases, money had already eroded the regulatory system. But the formal repeal of regulation removed any sense of constraint.
Now, Montana’s Supreme Court has offered the Supreme Court a chance to reconsider its folly. In defiance of Citizens United, the court upheld a 100-year-old state law that bans corporate money in campaigns, arguing that, given Montana’s early history of corporate money corrupting elected officials, the state ban served a compelling interest. As Attorney General Steve Bullock noted, “Our legislature, our judges, down to the local county assessors, were almost bought and paid for. Mark Twain even said that, you know, the amount of money coming in in Montana makes the smell of corruption almost sweet.”
The Supreme Court immediately issued a stay of the court ruling, pending a formal appeal. But in a separate note, Justices Ruth Bader Ginsburg and Stephen Breyer suggested the Montana case offered the Supreme Court’s five-person majority a change to reconsider a bad decision.
“Montana’s experience and experience elsewhere,” they wrote, “make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’ ” (Note the echo of Kennedy’s words in Citizens United.) The appeal “will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
Across the country, a fierce reaction to the corruption of our politics has begun to build. Some 20 senators have joined in co-sponsoring a constitutional amendment to overturn Citizens United. The New Mexico legislature just passed a resolution calling on Congress to move to amend. Similar resolutions have been introduced in Massachusetts, Wisconsin and Maine. Major cities — New York, Portland, and Los Angeles — have also acted.
Since a constitutional amendment would take years to pass, Rep. Chris Van Hollen (D-Md.) has introduced a bill requiring that super PACs and shadow groups disclose donors and spending every 24 hours on the Web. The groups’ TV ads would have to list the top five donors. Corporations and unions would have to detail their political spending to stockholders and members. This modest effort to bring transparency to an opaque process faces entrenched Republican opposition.
We don’t know who will win the elections this fall. But we know that the flood of independent and secret money will be unprecedented, funding salvos of negative ads that will foul the airwaves and disgust voters. And as voters increasingly view our politics as a corrupted playground for deep pocket donors, the Supreme Court majority might want to reconsider its unpopular decision.
Katrina vanden Heuvel is the author of the book “The Change I Believe In: Fighting for Progress in the Age of Obama.”