Republicans have been increasingly moving their fundraising and spending away from super PACs and toward dark money groups, which allow them to conceal the source of the money.
(Editor’s Note: How appropriate that this article appeared a day before the third season of House of Cards was released on Netflix. More and more, the television series is becoming an online civics class of how our government really works. — Mark L. Taylor)By Paul Blumenthal & Ryan Grim The Huffington Post (2/26/15)
hen Supreme Court Justice Anthony Kennedy cast the deciding vote to gut a century of campaign finance law, he assured the public that the unlimited corporate spending he was ushering in would “not give rise to corruption or the appearance of corruption.” Because those authorized to give and spend unlimited amounts were legally required to remain independent of the politicians themselves, Kennedy reasoned, there was no cause for concern.
Just five years later, in a development that may be surprising only to Justice Kennedy, the Supreme Court’s 2010 decision is reshaping how, how much and to whom money flows in Washington.
How the flood of money released by Citizens United v. Federal Election Commission has changed elections has been the subject of much discussion, but the decision’s role in allowing that same money to soak the legislative process has largely gone unreported. According to an extensive review of public documents held by the FEC, the U.S. Senate and the Internal Revenue Service, as well as interviews with lobbyists and policymakers, Kennedy’s allegedly independent spending has become increasingly intertwined with lobbying and legislation — the precise appearance of corruption campaign finance laws were meant to curb.
Politically active nonprofits, known as “dark money” groups for their ability to shield the identity of donors, and super PACs, which take unlimited sums of money but must disclose donors, have become dominated by lobbyists and other political operatives with close ties to leaders in Congress. Meanwhile, businesses with issues before Congress are pumping increasingly more money into the lobbyist-connected organizations.
The Supreme Court initially established a narrow definition of corruption in the 1970s, but Citizens United used it to blow open the gates that had been holding back corporate money. The 2010 decision came as the U.S. legislative system had evolved into a near parliamentary system of party-line voting and expansive party networks extending seamlessly from the Capitol to party headquarters to lobbying firms to outside political groups. Most top congressional legislators now have “leadership teams” — informal but internally recognized groups of aides-turned-lobbyists who help raise funds.
Naive, at best
To the lobbyists working in the system he helped create, Kennedy’s vision of political spending is unrecognizable. “I think Justice Kennedy’s view on this was naive at best,” one lobbyist told The Huffington Post, reflecting a rare bipartisan consensus. “People are going to do what’s allowed under the law.”
The Supreme Court majority’s casual dismissal of the possibility that the Citizens United ruling could lead to corruption or the appearance of corruption was necessary from a judicial perspective. Citizens United and a subsequent lower court ruling essentially hold that the First Amendment prevents the government from restricting political spending independent of the candidates and parties. Yet the courts had long recognized Congress’ authority to regulate the financing of campaigns and the lobbying process in order to maintain the citizens’ trust in a democratic government. Where the choice had been between the sanctity of elections on the one hand and an unfettered interpretation of the First Amendment on the other, the courts chose to protect elections — because without a trusted government, there is no First Amendment to speak of.
Kennedy and the other four justices, therefore, had to insist that independent political spending could not lead to corruption or the appearance of corruption — no threat of corruption meant no congressional authority to regulate that spending.
It is difficult, however, to look closely at the way laws are being made today without acknowledging at least an appearance of corruption. Congressional aides to whom HuffPost spoke all said that their own members of Congress were certainly not influenced in an untoward way by the corporate funds pumped into efforts to re-elect them, but that it was easy to see why the public might assume that to be the case. Five years later, the judicial logic of Citizens United has unraveled …