How I Became Stephen Colbert's Lawyer -- And Joined the Fight to Rescue Our Democracy from Citizens United
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Meanwhile, Congress itself is gridlocked over most of these issues—when they are here, and working, rather than fundraising. Disclosure, which used to be like “Mom and Apple Pie”—everyone was for it…is suddenly one of the most partisan issues in Washington. For two straight Congresses, there is not a single Republican Senator supporting the DISCLOSE Act, which would give us the disclosure the Supreme Court said in Citizens United that we already had! And the Republican response is that the Act is written to avoid requiring the unions to disclose the individual names of their millions of small dues-paying members. That is true, but is it a relevant criticism? Would they really support disclosing the names of millions of individual small donors to the NRA as well?
How did we get here? It is often forgotten, but for long periods of the previous Century, we had a pretty well functioning campaign finance system. In 1904 President Roosevelt called for public funding of the political parties, and a ban on corporate contributions. In 1907 he got one of those with the passage of the Tillman Act, which banned corporate contributions in federal elections, Congress extended contribution and expenditure restrictions to unions in 1947, and rewrote the laws following Watergate to ensure disclosure, set new individual contribution limits to candidates and parties, and create for the first time a public funding system for presidential elections and establish the FEC as an enforcement and disclosure agency.
Then in 2002, Congress passed McCain-Feingold, which essentially was designed to bring the system back into compliance with the Watergate-era reforms. I know everyone does not agree, but I believe the McCain-Feingold law largely worked in the 2006 and 2008 elections—the parties and candidates raised more money than before, much in small contributions, and there were comparatively few attempted end-runs around the system, and relatively little undisclosed money.
All of that is changed now. Obviously not everything I have described is the result of Citizens United—the Congressional fundraising race has been getting worse for years. But much of what we face today is the result—intended or otherwise—of that 2010 decision.
The Court made three fundamental mistakes in Citizens United. First, it declared that while corporate spending in all elections—state and local as well as federal—must now be allowed, that would be accompanied by complete disclosure of all campaign spending. Shareholders would know how their corporations are spending their funds, and voters would know who is paying for the election ads they are watching. As we have seen, this has not proved to be the case—largely because the Supreme Court majority was reading the statute, rather than the more obscure FEC regulations which “interpreted” the statutory disclosure mandate out of existence.
Then, the Court assumed that “independent expenditures” would be “totally independent” of candidates and parties—which is how the Supreme Court defined independent expenditures in Buckley v. Valeo back in 1976, and why it found them to be free of any possibility of corruption. As we have learned this year, that is a nice theory—with very little grounding in political reality, or in FEC regulations. Instead the FEC has actually deadlocked on an advisory opinion asking about the possibility of making coordinated non-coordinated election communications.
Finally, the Court erred, most seriously of all, in announcing that the only corruption that the government can attempt to avoid is “quid pro quo” corruption—explicitly trading votes or similar official actions for money—exactly the sort of personal venality that rarely exists. Justice Kennedy wrote: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy…Ingratiation and access, in any event, are not corruption.” The Court seems to be saying that the Congress, and state legislators cannot address systemic corruption—what Prof. Lessig calls “type two” corruption-- the effect on the legislative process of the massive amounts of money being raised and spent, and the sale of special access to large donors, and the threats of massive “independent” expenditures if the legislators don’t vote as they are asked. This, the Court seems to say, is all protected by the First Amendment—even if it is this sort of systemic corruption which most worried the founders when they sought to make Congress independent of other interests, “accountable only to the people.”