Americans, if your postprandial football game or James Bond movie marathon is interrupted — again and again — by presidential primary ads on Thursday, do not blame Citizens United, the 2010 Supreme Court ruling that opened a gusher of campaign cash. Blame instead a little-reported lower-court decision argued just days after Citizens United, which gave rise to the phenomenon of the super PAC, and which the Supreme Court, surprisingly, has never reviewed.
The case, called SpeechNow.org v. Federal Election Commission, tested whether super PACs — committees that raise and spend money on behalf of candidates but do not coordinate with their campaigns — should be subject to the same kind of contribution limits (currently $2,700 per person) that apply to the campaigns themselves. A federal appeals court in Washington, D.C., seized on one sentence in the newly minted Citizens United decision to sweep away all limits on super PAC expenditures and, notably, on their contributions as well. As a result, a single, stunningly rich family can — and did — contribute $15 million to a committee supporting Republican Ted Cruz for president, an amount that would be illegal a thousand times over if the family contributed to Cruz directly.
Harvard Law professor Laurence Tribe last week called it "comical" that super PAC contributions would be treated differently than contributions to the candidates themselves, since the supposed independence of the committees is little more than a fig leaf. No one denies, for example, that the Right To Rise super PAC is aligned with Florida governor Jeb Bush – and indeed is pulling in far more cash than the candidate himself. Right To Rise is headed by Republican consultant Mike Murphy, a close adviser to Bush, who guided his two Florida campaigns for governor.
Democrats have super PACS too, of course, with their own gauzy names, such as Priorities USA Action for Hillary Clinton and Generation Forward for Martin O'Malley (Bernie Sanders abjures super PACS). But so far at least, the Democrats are mostly raising and spending money from their own campaigns. Republicans have increasingly outsourced their media buys to the super PACs, where unlimited contributions have now been unleashed. According to the Center for Public Integrity, pro-Bush super PACs had aired 7,063 campaign ads on his behalf as of Oct. 26 this year, while his own campaign aired only 402.
The situation may be comical, but it's also deeply damaging; Tribe called it "the plutocratic takeover of our politics." Along with two other constitutional scholars who spoke on a panel convened by the campaign reform organization Free Speech for People (and which I moderated), Tribe believes that the SpeechNow decision is vulnerable to being overturned should a challenge be brought to the Supreme Court.
That's because the lower-court judges hung their ruling almost entirely on one blunt statement in the Citizens United decision: "We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." And since corruption is the only government interest the Supreme Court has recognized as serious enough to outweigh free speech rights in regulating campaign contributions, the SpeechNow judges simply dismissed any other arguments for regulating super PACs.
Put aside for a minute the belief most Americans have that corruption is endemic in the campaign fund-raising system. The Supreme Court defines corruption very narrowly as only "quid pro quo," or a direct exchange of money for a specific official action. Still, super PACs are threatening to overtake the fund-raising system the Supreme Court has approved — one that accepts limits on contributions — and a review of the case that spawned this irrational new dynamic would seem like a logical move for the court.
With their cloak of anonymity — or at least deniability — it's no surprise that super PAC ads have been overwhelmingly negative. The torrent of vitriol they have unleashed depresses turnout, further polarizes the electorate, and gives rise to the notion that voting is a sucker's game. Even this Supreme Court should find that an existential threat to democracy.
Renée Loth's column appears regularly in the Globe.