Daniel Newman: The Myths and Realities of Corruption: Citizens United, Two Years Later

January 21, 2012

With its disastrous Citizens United decision two years ago Saturday, the U.S. Supreme Court unleashed corporations to spend unlimited amounts of money to influence elections. By the court's invented criteria, this unlimited spending does not corrupt American democracy so long as it's "independent" of candidates' own campaigns. The court also promoted transparency — disclosure of who funds our politicians — as a key ingredient in our democracy. Two years later, this independence and transparency are, in practice, merely myths.

The Myth of Independence. Since the Citizens United decision, super PACs have become an expanding legal channel for corporations and individuals to promote candidates with unlimited funds. We hear candidates on the campaign trail repeatedly say that super PACs are independent from candidate campaigns. But super PAC independence is a myth. Super PACs typically are run by close associates of the candidate.

Although super PACs cannot privately discuss with a candidate's campaign the size and location of their ad buys, they don't need to — they simply can publish this information on their websites or in news articles. Super PACs and candidate campaign funds all are part of the same machine working to promote the candidate, a distinction with little difference.

The Myth of Transparency. It is a myth that there is meaningful disclosure of who is paying for candidates to get elected. Corporations and individuals now can spend unlimited money anonymously. They do this through various legal methods, including passing funds through nonprofit groups.

Even if contributions aren't made anonymously, for many large corporate donations, voters still cannot determine who is funding a candidate until after election day. For example, super PACs created after Jan. 1 do not have to disclose their donors until February. This 6-week disclosure black hole includes the Republican primary elections in Iowa, New Hampshire, South Carolina and Florida. The presidential nomination race might be decided before we know who funded the candidates.

Contributions to U.S. Senate campaigns in the weeks before election day aren't posted publicly until after voters cast their ballots. This delay comes from an indefensible legal exception that lets Senate candidates file disclosure reports on paper, while House and presidential candidates must file electronically.

Candidates benefit from the Myth of Independence. They avoid getting their hands dirty by being associated with sharp negative advertising, even though these ads are placed by the candidates' close associates and funded by their main financial backers.

Candidates also benefit from the Myth of Transparency. They avoid the public accountability of whether they are working for their voters or their donors.

President Barack Obama can make progress on his transparency promises now, simply by appointing commissioners to the moribund Federal Elections Commission. The FEC has the power to pass stronger transparency and independence rules, and five of the six FEC commissioners are serving despite expired terms. Yet Obama has refused to nominate new commissioners.

Senators can act now as well to end their absurd electronic filing exemption. Congress can pass a law for rapid and comprehensive transparency of political money, like the DISCLOSE Act, which was defeated two years ago.

These measures would not by themselves fix our corrupt political system, but they are steps forward and could be done quickly.

The five Supreme Court justices who decided the Citizens United case wrote that corporations' unlimited political spending was allowed so long as it was not coordinated with a candidate. But in practice, independence is a myth.

The court also wrote of the critical importance of disclosure of who funds our politicians: "Prompt disclosure of expenditures can provide shareholders and citizens with information needed to hold corporations and elected officials accountable for their positions and supporters. ... Citizens can see whether elected officials are 'in the pocket' of so-called moneyed interests."

Now, two years later, we have neither meaningful independence nor disclosure. Our government is now corrupt, both in fact and in law.

Daniel Newman is president and co-founder of MapLight, a nonpartisan research organization that reveals money's influence on politics.


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