Saturday will mark the second anniversary of the Supreme Court's decision in Citizens United vs. Federal Election Commission. The vultures it unleashed now are coming home to roost.
If ever there was proof of the legal aphorism that "bad cases make bad law," it is Citizens United. In 2007, the not-for-profit advocacy group Citizens United produced a scurrilous film attacking then-Sen. Hillary Clinton, D-N.Y., a candidate for the 2008 Democratic presidential nomination.
The organization sued the Federal Election Commission seeking to prevent enforcement of provisions in the Bipartisan Campaign Reform Act of 2002 that would have prevented Citizens United from buying TV time to advertise and televise its movie in Democratic primary states.
A lower court rejected Citizens United's request, but the Supreme Court took up the appeal in 2009, not once, but twice, insisting that the case be argued on the widest possible grounds to avoid "chilling" political speech.
The resulting 5-4 decision said that corporations — not just not-for-profits like Citizens United, but all corporations and associations, including labor unions — had the same right as individual citizens to spend unlimited amounts of money on election campaigns, as long as they did not coordinate their efforts with those of candidate committees.
The court said that the government could impose disclosure requirements enabling "the electorate to make informed decisions and give proper weight to different speakers and messages." But political operatives quickly found a loophole in what the Internal Revenue Service classifies as 501(c)4 "social welfare" corporations that don't require disclosure of donors' names. Congressional Republicans have continued to block efforts to mandate disclosure.
Citizens United had an immediate impact in the 2010 elections, when $30.6 million, most of it from anonymous sources, was spent by outside organizations unaffiliated with political parties to influence elections. Counting party-related organizations, $210 million was spent by independent groups in 2010, according to the Center for Responsive Politics.
Spending this year will dwarf that. Because independent organizations, now organized as "super political action committees," overwhelmingly support conservative candidates or causes — nine of the top 10 spending groups so far this year have conservative credentials — President Barack Obama's campaign expects to have to raise $1 billion in public donations to counter the secret assault. Democratic Senate and House candidates are on their own and easily could be buried in an avalanche of attack ads funded by secret money.
So far this year, however, Citizens United has had its greatest impact on the Republican presidential candidates. A super PAC linked to Mitt Romney gutted Newt Gingrich's campaign in Iowa. A Gingrich-friendly committee promised to retaliate with a full-bore assault on Romney in South Carolina. On Friday, Gingrich "asked" the committee to back off.
All of this is shameful in many ways. Corporations are not people, and money is not speech. The Supreme Court has ruled otherwise, effectively disenfranchising most Americans. The disclosure loopholes allow politicians to buy government in secret. And anyone who thinks candidate committees aren't illegally coordinating activities with "independent" super PACs is simply naive.
The FEC should be enforcing the rules, but the six-member commission is made up of three commissioners from each party and is gridlocked like everything else in Washington. Obama has appointed new commissioners to fill vacancies, but Republicans are blocking confirmation votes.
Nothing is at stake here but the integrity of elections and the legitimacy of the U. S. government.
© 2012 St. Louis Post-Dispatch