The New York Times

March 25, 2012

When Other Voices Are Drowned Out

The Supreme Court’s 5-to-4 ruling in Citizens United in 2010 was shaped by an extreme view of the First Amendment: money equals speech, and independent spending by wealthy organizations and individuals poses no problem to the political system. The court cavalierly dismissed worries that those with big bank accounts — and big megaphones — have an unfair advantage in exerting political power. It simply asserted that “the people have the ultimate influence over elected officials” — as if campaigns were not in the business of influencing and manipulating voters.

The flood of money unleashed this election season is a direct consequence of this naïve, damaging view, which has allowed wealthy organizations and individuals to drown out other voices in the campaign. The decision created a controlling precedent for other legal decisions that made so-called super PACs the primary vehicles for unlimited spending from wealthy organizations and individuals. In theory, they operate independently of candidates. In reality, candidates are outsourcing their attack ads to PACs, so financing a PAC is equivalent to financing a campaign.

In SpeechNow.org v. Federal Election Commission, the federal appeals court for the District of Columbia ruled that as a result of Citizens United, contributions by individuals to advocacy groups called 527s could not be limited. The Federal Election Commission further confirmed in 2010 that an “independent” political committee can accept unlimited contributions for unlimited spending from just about any kind of group or individual.

So far in this election cycle, outside spending by super PACs, corporations, unions and others totals $92.2 million, about two and a half times as much as in the same period in 2008 and six times as much as in the period in 2004.

Both the SpeechNow case and the F.E.C. ruling relied on the rationale for unlimited spending enunciated in Citizens United. Justice Anthony Kennedy, in the majority opinion, narrowed the court’s definition of political corruption to mean quid pro quo corruption, or bribery. Independent spending, he wrote, does “not give rise to corruption or the appearance of corruption” and “influence over or access to elected officials does not mean that these officials are corrupt.”

This narrow focus on bribery is intellectually dishonest. The corrupting influence of money is not limited to bribery — the broader problem is the ability of moneyed interests to put into office those who support their political agendas or financial interests.

The Roberts court did great damage by abandoning the idea that corporate treasuries can have “corrosive and distorting effects” on the political process if “used to influence unfairly election outcomes” in ways that create “the appearance of corruption in the political arena” — crucial language in a 1990 Supreme Court case that upheld limits on independent spending by corporations and was overturned by Citizens United.

In Citizens United, Justice Kennedy cited James Madison in The Federalist in noting that “factions” in American democracy can be “checked” by ensuring that all of them can speak freely and “by entrusting the people to judge what is true and what is false.” But when outside spending is unlimited, and political speech depends heavily on access to costly technology and ads, the wealthy can distort this fundamental element of democracy by drowning out those who lack financial resources.

Voters are left to judge well-financed spin, rather than truth and falsehood. Super PACs demonstrate that almost daily. Until 2010, the court wisely held that these effects were a form of corruption in politics.

The New York Times

March 25, 2012

The Wall Between Contractors and Politics

Since 1940, it has been illegal for federal government contractors to contribute to federal political campaigns or parties. But in the new unregulated, unlimited jungle of campaign finance, Mitt Romney’s super PAC is allowing some contractors to violate that historic ban, taking yet another dangerous step toward a culture where government business is done on a pay-to-play basis.

The ban on contractor donations is a broad one, applying to “any political party, committee, or candidate for public office, or to any person for any political purpose or use.” It goes back seven decades to the Hatch Act, and was designed to eliminate two practices that had led to corruption in Washington: companies using political donations to bribe their way to a lucrative federal contract, and lawmakers extorting money from companies that wished to do business with the government.

That law has remained on the books in various forms — though, unfortunately, it was watered down a bit in the 1970s to allow contractors to set up political-action committees that accept money from their employees and then donate it to candidates. But the ban on contractors using their own money to contribute was unchanged.

The Citizens United decision allowed corporations and unions to contribute unlimited amounts to so-called independent political groups, but it did not address the contractor ban. Given the long history of that ban, most third-party groups wisely assumed that it remained in place. For example, American Crossroads, the conservative super PAC formed by Karl Rove, requires donors to certify that the money does not come “from the treasury of an entity or person who is a federal contractor.” The same requirement is made by the super PACs supporting President Obama, Rick Santorum, Newt Gingrich and Ron Paul.

But not Mr. Romney’s super PAC, Restore Our Future, which does not impose that condition. The Los Angeles Times recently reported that the group has accepted donations from at least five government contractors, totaling $890,000. The biggest was from Oxbow Carbon, founded by the billionaire William Koch, which has a contract to sell coal to the Tennessee Valley Authority. One engineering contractor asked for a refund after being contacted by the newspaper, but not the others.

Restore Our Future officials would not discuss their thinking, but if they believe that Citizens United gives them immunity from the contractor ban, they are on shaky legal ground.

The Federal Election Commission decision that gave birth to the first super PAC did so explicitly with the understanding that the group would not take contractor money. And in a current lawsuit brought by a group of small contractors who want to contribute to political campaigns, the F.E.C. has made it clear that it believes the ban remains in effect “to serve important government interests in deterring corruption.” Lifting the ban during a campaign, F.E.C. lawyers wrote, could damage public confidence in the campaign-finance and contracting systems.

Mr. Romney improbably claims his campaign has nothing to do with his super PAC, but if it acquires a reputation for skirting the law, it will rub off on him, too. He should make clear that he wants the group to return all contractor contributions, and accept no more of them.