6 Pathetic Right-Wing Attempts to Defend the Indefensible Citizens United (Debunked)
Imagine this: in a week when the latest presidential campaign finance reports reveal a growing list of million-dollar donors to super PACs, right-wing bloggers and Republican lawyers are defending the Supreme Court’s controversial 2010 Citizens United decisions as maligned by media and of course, liberals.
The apologists are saying there’s nothing corrupt going on; it wasn’t caused by Citizen United anyway; it’s people not corporations writing the checks; it’s only free speech; it’s always been done; and it’s good for democracy.
Let’s unmask these silly assertions one by one. It might come as a shock to the right, but Americans who care about democracy can see through their charade.
1. Denying corruption.
Does anybody seriously think that any of these donors, who are some of the most accomplished businessmen in America, are just handing over millions as if they were giving a dollar to a homeless person and walking away? Or might they be investing in something, as, say, political venture capitalists?
Don’t even answer that, but go to the next assertion by the defenders of these super-citizens: that their donations are being given to groups that have no relationship whatsoever to the candidate’s official campaigns. It’s simply a coincidence, nothing more, that super PACs are doing the mudslinging for specific candidates—while official campaign ads are pure as snow.
Nope, Newt Gingrich does not owe anything to casino owner Sheldon Adelson, whose family’s $10 million gift to a pro-Newt super PAC has kept Gingrich’s campaign alive. And when they met in Las Vegas this month, you can be sure that Newt felt no pressure nor did he talk about the campaign. Neither does Rick Santorum owe anything to William Dore or Foster Friess for their big checks to another ‘independent’ and miraculously sympathetic super PAC.
Prove there is quid pro quo corruption going on here, responds James Bopp, the GOP’s attorney behind the Citizens United case. Where’s the evidence, he asks on online forums. Surely Bopp is correct: the founders wanted to create a system dominated by patrons who would have enjoyed golf with King George III (if he were alive today) and feel no fealty.
Seriously, even the New York Times has reported that Adelson seems to be playing Gingrich and Romney’s support of Israel against each other, to ensure that whoever gets the GOP nomination will take a hard line, including the possibility of a military strike against Iran. That is what he is buying.
And to summarily dismiss pesky polls showing that a majority of Americans disapprove of the ruling and are losing confidence in the electoral process could not be more off base.
2. Shifting the blame from Citizens United.
It is true that the Supreme Court has deregulated campaign finance laws since the mid-1970s—a trend that transcends single decisions. But Citizens United was special, and did many things including watering down the legal definition of what constitutes corruption—saying it’s not anything that might ingratiate a candidate or officeholder. Nice, eh?
Justice John Paul Stevens, in his Citizens United dissent, called the majority’s view of corruption “crabbed,” meaning excessively narrow, and pointed to the congressional record behind a 2002 ban on soft money (an earlier big money loophole) that discussed interlacing activities that looked like corruption to the Court, when it upheld that ban. But who has time to read 100,000 pages?
The biggest claim by right-wingers such as Mediaite’s Dan Abrams is that Citizens United did not lead to today’s explosion in super PAC activity, and it is “shameful, inexcusable and distorted” for the media to say so. “This argument is wrong,” countered Fred Wertheimer, one of Washington’s most respected campaign finance reform advocates, writing this week. “A little history is in order.”
The apologists say it wasn’t Citizens United, but technically, a lesser-known case that followed, SpeechNow v. FEC, that lifted the $2,500 per-person contribution limit to PACs in the primary (Adelson’s donations were 4,000 times that limit; Harold Simmons and Contran Corp were 5,640 times that limit. Adelson told Forbes this week he might give $100 million to help Newt.)
It’s tough, but sometimes you have to do what Wertheimer did—read the actual ruling and cite it. Here it is, with the key words italicized by Wertheimer:
In the operative sentence of the SpeechNow decision, Judge David Sentelle writing for the full D.C Circuit Court of Appeals stated:
Thereafter, the Supreme Court decided Citizens United v. FEC, 130 S. Ct. 876 (2010), which resolves this appeal. In accordance with that decision, we hold that the contribution limits of 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) are unconstitutional as applied to individuals’ contributions to SpeechNow. (Emphasis added).
So, uh, yeah, Citizens United lit the fuse behind the super PAC explosion.
3. Saying people, not corporations, are writing checks.
Once again, if you put on the blinders, that narrowly can be said for donations to super PACs. Indeed, most of the million-dollar or more contributions have been made by corporate executives as individuals, not by their corporate treasuries. But who says super PACs are the only game in town? They are not.
The other legal entity that is collecting really big money—to be spent exactly the same way as the super PACs are helping the GOP’s presidential contenders—are political non-profits, such as Karl Rove’s Crossroads GPS, which has set a 2012 fundraising goal of $300 million and does not have to disclose donors. Seven Democratic senators wrote to the IRS this week urging it to investigate whether “social welfare” groups were engaging in potentially illegal activity. (Prediction: the IRS will say yes, but only after the 2012 election is over.)
The federal judiciary’s deregulation of political contributions to groups making anything but independent expenditures does not end with super PACs. It makes sense that individuals with feelings for a candidate would donate to a super PAC supporting them in the race’s early phase, whereas corporations would wait to donate to a non-profit (whether Rove’s GPS or the U.S. Chamber of Commerce) after the GOP nominee is chosen and without revealing their identity.
4. Hiding behind free speech.
As the Republican National Lawyers Association blog said this week, quoting Supreme Court Justice Antonin Scalia’s recent speech to South Carolina’s Bar, “I don’t care who is doing the speech—the more the merrier… People are not stupid. If they don’t like it, they will shut it off.”
Moreover, other defenders of this view such as the ACLU’s national board say what’s the big deal—the wealthy are paying for democracy; better them than you or me, right? And plenty of money is being thrown around by Ds and Rs, canceling any side’s advantage.
There are many problems with that thinking. The first is that it still gives outsized influence in the electoral process to the richest people and institutions. Anyone who has seen a reality TV show may have noticed that the richest Americans don’t exactly have the same "issues" as the rest of the country.
Second, when a few loud perspectives dominate the airways and debate, it eclipses the voices of people of lesser means and discourages their participation and confidence in the process. As such, wealth-driven political speech isn’t free. It’s very expensive. And the costs are not just monetary, but measured in the public’s eroding trust in representative government and the elections.
5. 'It’s always been done.'
Anybody who follows money in politics knows that every campaign surfaces new ways to get around the legal limits that are intended to keep elections free from corruption and encourage debate. However, as Democracy 21’s Wertheimer again notes, “The argument is wrong.”
This year is not like past elections. In 2004, millions were given to the Swift Boat PAC attacking John Kerry and financier George Soros also gave millions to two pro-Kerry PACs. However, both were illegal and Wertheimer said that all these “PACs paid substantial fines to the FEC [Federal Election Commission].”
“If these PACs had properly complied in 2004 with existing campaign finance laws, the contributions from individuals to the Swift Boat PAC and to the two pro-Democratic PACs would have been limited to $5,000 per donor per year,” he wrote. “The bottom line is this: the ability of corporations, labor unions and individuals to give unlimited contributions to super PACs making independent expenditures to influence federal elections flows directly from the Supreme Court’s decision in the Citizens United case.”
6. The absurd claim that it’s good for democracy.
Anyone who has read this commentary can draw his or her own conclusions.
What’s clear is that the Supreme Court has unleashed a new campaign finance regime, with Citizens United being its signature ruling. That the mainstream media or others do not cite the follow-up ruling, SpeechNow, does not change their fundamental critique or analysis.
There are as many serious constitutional reasons for imposing limits on what is spent in campaigns as there are for taking a less restrictive approach. However, whether 2012’s spending is by wealthy individuals in super PACs or wealthy corporations in non-profits is another distinction without much difference.
The point is the 2012 presidential campaign—and this will be true in races for Congress and other competitive contests, including electing judges—has been marked by enormous loopholes and ways for the wealthy to spend political money with impunity and in some cases anonymously.
The remedy is not necessarily censoring the wealthiest people and institutions, but balancing their participation with Americans of more modest means. Whether that comes from constitutional amendment campaigns, appointment of the next Supreme Court justice to rebalance the Court, or a revitalized Congress that is not afraid to legislate and challenge the Supreme Court remains to be seen.
In early 2012, super-donor and super-PAC spending is what our democracy looks like. But that is not what it is supposed to look like.