THE SUPREME Court’s 2010 decision in Citizens United v. Federal Election Commission, permitting unlimited corporate and union donations for independent political activity, stated explicitly the meaning of independent. “By definition,” the court declared, “an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” The thrust of the decision was that such outside political donations are protected by the First Amendment, but they must remain separate from the candidate and fully disclosed to the voters. Sadly, in this campaign season, it seems that only some portions of Citizens United are being honored, while others are widely ignored.
The court opened the floodgates to contributions, but far too little attention has been paid to the court’s insistence that unlimited outside money must be independent. According to a report from the Brennan Center for Justice at New York University School of Law, many campaigns at the state and local levels are being run as if they never heard of this requirement. “In the past four years, outside spending at the state and local level has surged,” the center found. “Much of that spending has occurred with questionable independence from the candidates who stand to benefit.” The center found all kinds of dodges and evasions of the Supreme Court’s intent, such as: friends of candidates who organize political committees for them, candidates who fundraise for the supposedly independent committees, collusion in campaign messaging and other means of cooperation that, while not illegal, seem to have “flunked the smell test.”
One example from the report: Florida Gov. Rick Scott (R) has appeared in multiple television ads that have been paid for by an organization called Let’s Get to Work. The group’s name is also a Scott campaign slogan. What a coincidence!
Why is this criterion important? First, to avoid undermining the basic legal limits that still apply to direct contributions to candidates. And to avoid the creation of corrupt pressures on elected officials to repay big outside donors after the election, or even the appearance of such temptations, which loom large. The Brennan Center says states have plenty of options to strengthen their laws and enforcement — if they want to do so.
The Citizens United decision also reiterated the importance of full disclosure in political campaigns, but many have conveniently forgotten this as well. The Federal Election Commission this week finally got around to approving regulations in response to Citizens United, but it did not shore up flawed disclosure requirements. Ellen Weintraub , a Democratic appointee to the FEC, voted against the rules. “Let’s be real here,” she said in a statement afterward. “We are talking about multimillionaires and billionaires spending millions of dollars to influence elections so they can set government policy. And they want to do it behind closed doors, shielded from view of the American public.”
Now they will be allowed to continue. The tide of “dark money” into campaigns this year has been setting new records, without either the transparency or independence that the Supreme Court envisioned.