Seven Years Later, the Foundation of Citizens United is in Ruins

Seven Years Later, the Foundation of Citizens United is in Ruins
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Michael Sacks, a wealthy Chicago businessman and major Democratic donor, has been called the “Rahm whisperer” due to his close relationship as a trusted adviser of Chicago Mayor Rahm Emanuel. So close in fact, some consider him the “shadow mayor.”

During Emanuel’s re-election campaign in 2014, Sacks and his wife both contributed the maximum allowable amount directly to Emanuel’s campaign: $5,300. But that wasn’t the last time the couple contributed money to help Emanuel win re-election. After maxing out to Emanuel, they contributed $1.9 million to Chicago Forward, a super PAC dedicated largely to Emanuel's re-election. It was formed by close Emanuel ally Rebecca Carroll immediately after she left Emanuel’s administration. Carroll has called super PACs the “shiny new object in campaigns today” because “they provide new flexibility” in states where there is “far more stringent control.”

By the end of Chicago Forward’s first day of existence, it had received $950,000 from seven individuals – all of whom had previously maxed out on donations to Emanuel himself. By the time the election was over, 73 percent of Chicago Forward’s contributors had also donated to Emanuel directly, and the super PAC spent 72 percent of its money in support of Emanuel or against his opponent.

But in the eyes of the U.S. Supreme Court, there’s nothing to see here – just an independent group doing independent things.

In its 2010 Citizens United decision, the court assumed that activities of groups like Chicago Forward were “independent.” Unlike unlimited direct contributions to candidates, “independent” spending does not pose a risk of causing corruption, the court reasoned, and therefore should not be limited.

By the court’s logic, had Sacks and his wife contributed $5,301 to Emanuel’s campaign directly, that would have been more potentially corrupting than the $1.9 million they contributed to the Emanuel-supporting super PAC.

In Citizens United, Justice Anthony Kennedy assumed that outside entities’ activities are independent “by definition,” based on a single line in a court case from 35 years earlier. Kennedy should have known at the time that the spending unleashed by the decision would not be truly independent. But regardless, since the decision, it has been well documented that Citizens United has resulted in massive amounts of spending at the federal level by organizations that are essentially arms of candidates’ campaigns.

But the damage is not limited to federal elections. Our recent report – The Foundation of Citizens United Is in Ruins – documents the devastating effect of Citizens United on state and local races around the country. From high-profile mayoral races to elections for unpaid school board seats, Citizens United has turned state and local politics into the Wild West.

The examples in our report, while not all strictly due to Citizens United, illustrate the fallacy of assuming that outside groups operate independently by definition.

In Washington, D.C., a year after Mayor Muriel Bowser’s election, her former campaign treasurer created an outside group, FreshPAC, which was named after Bowser’s own campaign slogan – a “fresh start.” FreshPAC’s donors were familiar with Bowser, as 74 percent of them had contributed directly to Bowser’s campaign the year before. Bowser herself even attended two of the group’s fundraisers. FreshPAC came under immense criticism when reporting showed that many of its donors were currently doing business, or seeking to do business, with the District. An unidentified donor to the group told the Washington Post, “If you want to continue to have good favor with the mayor,” giving to FreshPAC “is something you do.”

In Elizabethtown, N.J., a super PAC whose largest individual donor was a for-profit bail industry lobbying group, spent hundreds of thousands of dollars on a race for unpaid school board seats. The super PAC’s expenditures were so overwhelming that the candidates it supported barely bothered to raise money for their campaigns.

In Oklahoma, a candidate for state school superintendent, Joy Hofmeister, strategized by e-mail that the “independent” group supporting her could do the dirty work by running negative ads while she would “take the high road.” Hofmeister denied having specific knowledge about the group. Unfortunately for her, investigators had emails and texts showing otherwise. In one text message, she gleefully exclaimed that a “wind turbine lobbyist [is] interested in my IE. :).”(IE, stands for independent expenditure campaign.)

Hofmeister was ultimately indicted. But it was not the result of a well-functioning campaign finance system catching a candidate’s misdeeds. It was because Hofmeister’s communications with the outside group were revealed in an unrelated drug bust.

Seven years after Citizens United, the candidates, the “independent” groups, the press and voters all understand that independent groups often are independent in name only.

In the Citizens United decision, Kennedy acknowledged that a problem could arise, writing: “If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern.”

It’s uncommon for the Supreme Court to overturn a decision within a decade, particularly when the decision’s author remains on the bench. But if a case challenging Citizens United arrives before the court, Kennedy will be presented with overwhelming evidence that the assumption of independence “by definition” has been disproved.

The assumption of independence is the foundation upon which the Citizens United house was built, and if the foundation is shot, it’s time for the house to come down too.

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