POLITICO Op-ed by Democracy 21 President Fred Wertheimer: Court’s corruption of election law

With its disastrous Citizens United decision in January, the Supreme Court, its eyes wide shut, opened a Pandora’s box.

The five justices who struck down the ban on corporate expenditures in federal elections had no idea what they were unleashing on our democracy; no understanding of the consequences of their radical change to campaign finance laws.

They apparently decided they could do better than Congress at writing these laws. But they were dead wrong. They proceeded to "legislate" from the bench – a practice frowned upon by these same five justices.

Their decision was based on a series of fundamental mistakes.

The court in Citizens United emphasized the essential role of disclosure in the new campaign finance system it created. Justice Anthony Kennedy’s majority opinion stated that disclosure allows citizens to "make informed choices in the political marketplace," and "permits citizens and shareholders to react to the speech of corporate entities in a proper way."

But the court majority never understood that the disclosure it said is "needed to hold corporations and elected officials accountable for their positions and supporters," does not exist under today’s campaign finance laws. The laws had already been undermined by Federal Election Commission regulations. So the court did not understand this crucial disclosure information was not going to be provided to voters.

"A campaign finance system that pairs corporate independent expenditures with effective disclosure," Kennedy wrote in January, "has not existed before today." But it still does not exist. The $130 million in secret contributions that flooded the midterms demonstrated just how wrong Kennedy was in assuming there is "effective disclosure."

Secret political money is a formula for corruption and the court’s uninformed assumption put this formula into play.

The court also made a second fundamental mistake: It assumed corporations would have to make campaign expenditures "independently" of the candidate or national party they benefit. This was essential to the court’s premise that corporate campaign spending would not have a corrupting influence.

The court, however, did not define what it meant by "independent." It relied instead on FEC rules, which it erroneously assumed would prevent coordination.

The five justices did not understand that FEC regulations do not in any meaningful way prevent spenders from coordinating their expenditures with candidates and parties. FEC regulations allow corporate spenders and candidates to work together in ways almost no one would call "independent."

For example, FEC regulations allow a candidate to have "discussions" with a corporate spender about all aspects of the campaign – as long as there is no discussion about a specific communication to be made by the spender. And while a corporate spender is talking to a senator about his campaign, the spender is also free to request the senator’s support and vote on any legislative matter.

To most people, this looks just like the kind of coordination that can lead to "influence-buying" corruption. To the FEC – and apparently to five justices – this is no problem.

In a third fundamental mistake, the court erred in assuming that even "independent" expenditures could not have a corrupting influence on federal officeholders or create the appearance of such influence.

This is a nave view of U.S. politics and influence-buying corruption.

In its 1976 Buckley decision, the court found that, based on the record before it, independent campaign spending "does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions."

Underlying that ruling, however, was the fact that there was little, if any, history of independent spending before 1976. Because until then, donors could contribute unlimited amounts directly to candidates.

Circumstances have changed dramatically. Yet, in Citizens United, the court never provided the parties with an opportunity to create a record to show that independent expenditures can corrupt federal officeholders or create the appearance of corruption. Indeed, the constitutionality of the ban on corporate spending was not even in the Citizens United case — until the Supreme Court added it.

But once it added it, the court did not send the case back to the lower court, where a record could be developed. Instead, relying on what it said in 1976, the court made a broad pronouncement that independent expenditures could not exercise a corrupting influence.

The court’s finding in Citizens United does not acknowledge the real world of influence-buying corruption today. How can a corporation that spent $20 million or $30 million to elect a senator not gain influence over the senator’s positions as a result? It also belies reality to think that such expenditures do not create the appearance of corrupting influence — just because the corporation has not "coordinated" its expenditures with the senator.

The court in Citizens United did not base these unwarranted assumptions on any record.

So, we end up with a ruling based on the premise that it is crucial to have effective disclosure so citizens can "make informed choices." But, in fact, the Supreme Court decision paved the way for massive amounts of secret contributions.

In similar fashion, we end up with a decision based on the premise that corporate campaign expenditures cannot be coordinated with a federal candidate. But, in fact, given the court’s failure to define coordination, as well as ineffectual FEC rules, they can be coordinated.

And, we end up with a decision based on the premise that corporations’ independent campaign expenditures, by definition, cannot have a corrupting influence. But, in fact, they can.

Some decision!