Michael Waldman is executive director of the Brennan Center for Justice at New York University law school.
We now approach the first general election of the Citizens United era. That ruling upended decades of precedent and nearly a century of settled law to hold that corporate campaign spending limits violate the First Amendment. The opinion was the most controversial in years. By the time President Obama finished scolding the justices at the State of the Union address, polls showed public disapproval of the ruling by 80-20.
Critics warned it would tilt the playing field of American politics. But others, with worldly cynicism, shrugged that it wouldn't change much. Corporations would be intimidated and fearful of angering customers. Plus ça change.
Just this once, the Chicken Littles were onto something. Citizens United has loosed a tide of massive—and alarmingly sneaky—spending. For all the Tea Party hubbub, this election's major factor could be cold, anonymous cash.
Labor unions were the first to take advantage of the new rules, spending $10 million in an Arkansas U.S. Senate race. Then Target Corp. reaped consumer boycotts after it gave money to an anti-gay referendum campaign in Minnesota. Perhaps the fear of public backlash would hold spending in check after all.
Alas, it was not to be so. Citizens United came after years where the Court chipped away at existing, needed campaign laws. Now the new ruling has unlocked massive campaign spending, much of it through front groups, cutouts, and nonprofits, without disclosing who is paying the bill. Money talks, but refuses to leave its name. Target routed its controversial funding through the blandly named MN Forward. In West Virginia, mining executives are setting up "527 groups" (which can delay disclosure until after November 2) to help elect coal-friendly candidates. The U.S. Chamber of Commerce, which does not disclose its backers, has pledged to spend $75 million in the midterm elections. When political funders skirt the rules, few fear a regulatory response. Citizens United seems less a doctrine than a starter pistol.
This year, the anonymous funding vastly favors the GOP. Other years, the money may favor Democrats. But there can be little doubt it will warp policymaking. Lawmakers who vote on bank regulation, say, will know that a pro-consumer stance could be punished with sudden, secret spending for a foe. Lobbyists have a new bludgeon with which to persuade.
What to do? The simplest step is to strengthen disclosure. Yet last week, new rules were blocked by a unanimous GOP vote in the Senate—even though Republicans once championed disclosure as an alternative to spending caps. We can require corporate managers to give shareholders a meaningful say before spending on campaigns, and encourage responsible firms to hold back. We can boost the power of small donors through voluntary public financing of campaigns. A House panel just passed this plan, setting the stage for a new drive for change. In coming years, we must push back against the judicial approach that says the First Amendment protects the power of special interests, but offers little protection for the rights of voters to have fair and participatory elections. If all else fails, a Constitutional amendment may be needed. And we will have to redouble efforts to expose the new flow of fishy money.
So: Did Citizens United matter? The answer is yes—significantly. And unless remedied, the ruling points toward a truly dystopian future, when candidates, campaigns, and parties are drowned out by special interest funding as loud as it is stealthy.