Big money is having a powerfully different effect on this year's national election campaign. We've seen it in the extraordinary oscillations of the Republican primaries, largely brought about by millions of dollars of television attack ads, financed not by the opposing campaigns so much as by groups outside the parties that can say whatever they want without the candidates or the parties being called to account.
These are the super PACs, political action committees on steroids. Their muscle—and some think their menace—comes from two federal court rulings in 2010, notably the Supreme Court's decision in Citizens United, that allow them to raise as much as they can from anyone and spend as much as they like, provided—and it was regarded as a key proviso—that they are independent. For a super PAC to make contributions directly to parties or candidates, or do anything in collusion with candidates, is illegal.
It is also very naïve to believe this independence can be real. As Sen. John McCain has noted, none of the justices has ever run for political office. The senator, in this matter the intellectual heir of President Theodore Roosevelt, was the co-author of the Bipartisan Campaign Reform Act, commonly known as McCain-Feingold. The trouble of a good effort was that the reform proved unrealistic in the way it severely limited the amount of money that parties can collect for campaigns. Money, like water, seeps through any crack. McCain predicts the result of the Supreme Court action will be major scandals—what the court calls quid pro quo corruption, meaning you scratch my back and I'll scratch yours. That will certainly be more likely if there is not full and early disclosure of where the money comes from, i.e., who is giving it, for undisclosed money is the most dangerous weakness in our system.
The high court's majority thesis is basically that the law McCain favors is unconstitutional. The First Amendment allows two, 20, or 1,000 or more individuals to pool their resources and exercise the same rights as individuals. Individuals do not forfeit their First Amendment rights when they come together to speak collectively, this thesis holds, since the First Amendment states that "Congress shall make no law ... abridging the freedom of speech" or compromising the right "to petition the government for a redress of grievances." The court essentially said that spending is speech, in recognition of the fact that in the modern world you cannot get your political message out without money. To restrict spending, therefore, is to restrict free speech.
It's a defensible position, but the result is an inundation of irresponsible negative advertising, not just on TV but also on the Internet. The ads have made household names of people like Sheldon Adelson and Foster Friess because of their multimillion-dollar cash infusions on behalf of the campaigns of Newt Gingrich and Rick Santorum, respectively. Nor are they alone. President Obama is being supported by a Democratic super PAC called Priorities USA Action; Mitt Romney is backed by a super PAC called Restore Our Future. The net result is that unprecedented amounts of money are being raised with which to wage political campaigns. This kind of fundraising has more than doubled compared to 2008.
Nobody has tested the boundaries of this new super campaign finance world, which has overwhelmed the laws passed in the 1970s in the wake of the Watergate scandal. Back then, individuals and groups could give campaigns a maximum of $5,000 per election cycle in most cases. The purpose was to eliminate big gifts that could be seen as bribes, while allowing candidates to raise sufficient funds for a national campaign. Surprise, surprise—lawyers found ways around the limits, largely by funneling money through groups that were not a formal part of any campaign and were focused on "issues" rather than directly electing candidates. This freed up unions, businesses, and public interest groups to engage in political campaigns, as long as they remained independent of all parties and candidates.