When Bush’s son George W. became president in 2001, the words “climate change” were still safe for Republicans to utter in public. Like his father, Bush promised to cap carbon dioxide and require power plants to reduce greenhouse gas emissions—again, on a campaign stop in Michigan. In 2008, Republican presidential candidate John McCain openly campaigned on his climate record. As a senator, McCain had introduced a version of cap-and-trade three separate times. He mentioned climate change in all three presidential debates with Barack Obama. Throughout this thirty-year period, the momentum in national politics, often pushed by Republicans, seemed to shift in favor of climate action. That was certainly true within Democratic politics, where climate change had emerged as a pillar of the party’s agenda.
And yet, within just a few years, an outlook like McCain’s was viewed with contempt in Republican circles. McCain’s running mate, former Alaska governor Sarah Palin, had agreed during a 2008 campaign debate that “real changes are going on in our climate”—though not with the same conviction she brought to “drill, baby, drill”—but eight years later she would star in the far right documentary Climate Hustle, suggesting that climate change was “bogus” and wondering whether the federal government was exploiting the issue “to have more control over us, our homes, our businesses, our families, our lives.” Her rhetoric, which in earlier times would have been dismissed as ranting from the paranoid fringe, had moved to the heart of the Republican Party.
In 2016, all of this culminated in the nomination and election of Donald J. Trump, who famously described climate change as a “hoax” perpetrated by the Chinese. The president has filled key cabinet positions—such as at the Environmental Protection Agency and the Department of the Interior—with some of America’s top climate deniers. He has rolled back dozens of climate-change and other environmental regulations—rollbacks now being challenged in the courts—putting the health of our children at risk while at the same time leaving business owners unclear on whether to invest in pollution-reducing technologies. Trump has reversed the long-established tradition of conservation begun by Teddy Roosevelt, attempting to decrease the size of our national monuments and open up more land to oil-and-gas exploration. As noted, he has backed away from the global climate agreement negotiated by his predecessor. Afterward, during a cold snap, he tweeted, “Perhaps we could use a little bit of that good old Global Warming that our Country, but not other countries, was going to pay TRILLIONS OF DOLLARS to protect against. Bundle up!”5
II. Equating Money and Speech
The Republican shift from the environmental stewardship of Nixon, Reagan, both Bushes, and McCain to the anything-goes attitude of Palin and Trump is, to a significant degree, the work of the United States Supreme Court. The court has fundamentally misconceived the corrupting power of money in our politics and in so doing sanctioned a far more insidious form of corruption.
If President Nixon is directly responsible for much of modern environmental policy, he is indirectly responsible for much of the modern campaign finance system. The Watergate scandal involved allegations not only that Nixon obstructed justice but also that he accepted illicit campaign contributions. In response, Congress passed laws capping campaign contributions and campaign spending and required public disclosure of both. It also limited the amount of money that outside groups could spend on elections. Finally, it created the Federal Election Commission (FEC) to provide enforcement.
Almost immediately, corporations and other wealthy interests challenged the new regime as a violation of their rights under the First Amendment. This set off a prolonged legal fight stretching across three decades, beginning with the 1976 Supreme Court ruling in Buckley v. Valeo and ending (for the moment) with two rulings in 2010: the Supreme Court’s decision in Citizens United v. FEC and the D.C. Circuit court’s decision in SpeechNOW v. FEC.
In Buckley, the court grappled with two basic questions: What is the relationship between money and speech? And when can the government limit political spending to protect the integrity of our democratic system? On the first question, the court ruled that regulating spending for political speech required the same “exacting scrutiny” as regulating speech itself. Put simply, the court was effectively treating the spending of money the same way it treated speech. It left undecided the question of whether corporations enjoyed the same rights as people under the First Amendment.
On the second question, the court sought to define when it was acceptable to regulate money in politics. This answer was more complex and ultimately very consequential. The court’s initial step was to define corruption narrowly. “To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders,” the court explained, the “integrity of our system of representative democracy is undermined.” The court went on: “Of almost equal concern … is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.”
The idea behind this last point is that if someone directly contributes to my campaign (the apparent “quid”) and I pass legislation consistent with that donor’s interests (the apparent “quo”), and even if there is no actual corruption or corrupt intent, an appearance of corruption might arise that could cause Americans to lose faith in their democracy. This being so, the Buckley court found a “sufficiently important governmental interest” in the “prevention of corruption and the appearance of corruption.” Accordingly, it upheld limits on what individuals could contribute to campaigns, along with disclosure requirements for those contributions.
But the court then made a damaging leap. Even as it upheld limits on individual contributions to political campaigns, it undid limits on political spending by outside groups. In the jargon of campaign finance, these are called “independent expenditures.”
According to the court, “The absence of prearrangement and coordination of an expenditure with the candidate … alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Put differently, the independence of outside groups meant there was insufficient concern about corruption or the appearance of corruption to justify restrictions on their political spending.
At the same time, the court distinguished between two categories of speech: express advocacy and issue advocacy. Express advocacy included political communication that explicitly supported or opposed a candidate. Issue advocacy, in the court’s opinion, educated the public about general political issues. The court ruled that groups primarily engaged in express advocacy were subject to campaign finance laws, with all the attendant contribution limits and disclosure requirements. Groups primarily engaged in issue advocacy, however, faced no such restrictions.
In Buckley the court recognized the challenge of distinguishing between the two categories of advocacy and suggested that any advertising containing the phrase “vote for,” “elect,” “cast your ballot for,” “support,” “vote against,” “defeat,” or “reject” constituted express advocacy. In the years after Buckley, most lower courts interpreted the Supreme Court’s holding to mean that advertisements without these “magic words” were not express advocacy and therefore could not face limits under our campaign finance system.
To Washington’s ad makers, this was a distinction without a difference—preposterous to the point of irrelevance. As the former chair of the National Rifle Association’s advocacy arm put it, “It is foolish to believe there is any practical difference between issue advocacy and advocacy of a political candidate. What separates issue advocacy and political advocacy is a line in the sand drawn on a windy day.”
Consider the following example. If an outside group runs an ad saying: “Michael Bennet worships Stalin—vote against Michael Bennet in the election next Tuesday,” then that would be a form of express advocacy, subject to campaign finance rules. But if the ad said: “Michael Bennet worships Stalin—contact Michael Benne
t and tell him to stop supporting Communism,” then that would be an issue ad and face no such rules.
In the twenty years following the Buckley decision, factions took full advantage of this loophole. In the 1996 elections, political parties, unions, and corporate-backed groups flooded the airwaves with $150 million worth of issue ads that to any ordinary human being were indistinguishable from campaign ads.
Thus, the National Abortion and Reproductive Rights Action League, a pro-choice group, ran ads excoriating Republican presidential candidate Bob Dole for his record on abortion:
Now Bob Dole says he’s tolerant on abortion? The real story is he’s supporting a platform that would make abortion illegal … Take us back to back-alley abortions … Join us in opposing Bob Dole’s extremist party platform. While we still have the choice.
On the other side, groups like Citizens for a Sound Economy lambasted President Clinton for opposing legislation to limit liability claims for defective medical products:
My name is Peggy Philips. I was clinically dead twice. I had no pulse. And no blood flow to my brain. It was cardiac arrest. Doctors implanted a medical device that can shock my heart to keep me alive. My implant’s special battery needs changing from time to time. But unfortunately, it may no longer be made because of the threat of frivolous product liability lawsuits. Congress passed product liability reform legislation. Mr. President, won’t you please sign this bill? I might not be lucky the third time around.
Ads like these were everywhere. Politicians took note. Congress tried to clean up after the court with the Bipartisan Campaign Reform Act of 2002, known more often as McCain-Feingold, after its sponsors: John McCain and Russell Feingold, a Democratic senator from Wisconsin. Among other reforms, the law tried to stem the tide of sham issue ads. Specifically, it barred corporations and unions from running ads that mentioned candidates by name within sixty days of a general election and within thirty days of a primary election. Unsurprisingly, McCain-Feingold came under immediate attack from both left and right, uniting unlikely bedfellows such as the National Rifle Association and the AFL-CIO in opposition. Among the critics was Senator Mitch McConnell, who became the face of a lawsuit challenging McCain-Feingold as unconstitutional under the First Amendment. In 2003, the Supreme Court disagreed, ruling 5–4 in McConnell v. FEC to uphold major provisions of the law. In its ruling, the court pointed to the “reams of disquieting evidence” showing how outside contributions and spending had “given rise to the appearance of undue influence.” The new reforms, therefore, were a pragmatic and constitutional response to safeguard the integrity of our democracy.
In a few years, with two new justices on the bench, the court would come to a radically different conclusion. In 2008, the conservative nonprofit group Citizens United prepared to release a faux documentary titled Hillary: The Movie, which had been created to damage Hillary Clinton’s presidential campaign. The group sought an injunction to prevent the FEC from blocking the film’s distribution under McCain-Feingold. Once again, the case made it to the Supreme Court.
The 5–4 ruling in Citizens United released a depth charge into the currents of American politics. Essentially, the court upended the previous thirty years of precedent and doubled down on Buckley. Yes, the government had an interest in preventing the reality or the appearance of corruption; and yes, that interest justified limiting individual contributions to campaigns. But it could not justify restrictions on spending by outside groups.
The Citizens United court then went a step beyond Buckley. It declared that “political speech is indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” In other words, with respect to campaigns, corporations had the same rights under the First Amendment that “natural persons” have. Indeed, according to the majority opinion, the government had muffled “the voices that best represent the most significant segments of the economy”— that is, corporations—and placed “onerous restrictions” on corporate speech.
Not only had the court misunderstood American politics, but in its haste it also chose to decide the case with virtually no factual record to consider. Instead of remanding the case to a lower court, which would establish the facts, the Citizens United court simply imported the record from McConnell v. FEC, noting that “the McConnell record was ‘over 100,000 pages’ long, yet it ‘does not have any direct examples of votes being exchanged for … expenditures’ … This confirms Buckley’s reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.” Once again the court defined its view of corruption narrowly, in this case as votes being traded for expenditures.
The Supreme Court reached one of its most pivotal decisions in a vacuum of evidence. In place of facts, it based its decision on a set of assumptions about money in politics that was utterly divorced from reality. For example, the court contended that “it is well known that the public begins to concentrate on elections only in the weeks immediately before they are held. There are short time frames in which speech can have an influence.” That would certainly be news to voters in swing states and to candidates for federal office, who routinely campaign for two years before Election Day.
The court observed that even though outside groups “may have influence over or access to elected officials,” such influence and access “will not cause the electorate to lose faith in this democracy.” Moreover, the court went on, the fact that officials grant access or are influenced should not necessarily be taken to mean “that these officials are corrupt.” Well, of course not—but there is still the issue of perception, which even Buckley recognized. And there is cause for alarm when someone like the former congressman Mick Mulvaney confesses that “if you were a lobbyist who never gave us money, I didn’t talk to you. If you were a lobbyist who gave us money, I might talk to you.” In December 2018, President Trump named Mulvaney as the acting White House chief of staff.
Where has all of this left us? Starting with Buckley, the court has in essence treated the spending of money as a form of speech. In Citizens United, the court wrote that “it is our law and our tradition that more speech, not less, is the governing rule.” This line of reasoning leads to the inevitable conclusion that more money, not less, should be the governing rule in our democracy—and should in fact be welcomed. That is the opposite of what most voters believe.
I have yet to meet a single American who believes that the problem with our politics is that there is not enough money in it.6
Citizens United has taken America down a dangerous road. And it has become more dangerous still. After the Supreme Court struck down limits on what outside groups could spend, lower courts used the same logic to strike down limits on individual contributions to these groups. Money could now make its way unhindered into the coffers of two of the most corrosive entities in modern politics: dark-money groups and super PACs. Dark-money groups, officially considered “social welfare organizations” by the IRS, enjoy preferential tax treatment and do not have to disclose their donors. For this privileged status, they need only demonstrate that they are not “primarily” engaged in political activity.7 By contrast, super PACs can legally spend and solicit an unlimited amount of money in our elections. Although super PACs, unlike some other dark-money vehicles, are required to disclose their donors, we know that few Americans will ever lay eyes on an FEC report. Most will see a flurry of ads that hide individual financiers behind Orwellian names like Colorado Rising or Protect Americans Now that give us no idea of their true agenda. These ads run all year, not just sixty days before an election. Far from clarifying the truth, our system of financing campaigns has become an exercise to obscure it.
All of this goes beyond even Citizens United, in which eight of the nine justices at least seemed to agree that disclosure was not only constitutional but also essential. In another case decided that year, Justice Antonin Scalia captured this idea and the stakes perfectly:
&n
bsp; Requiring people to stand up in public for their political acts fosters civic courage, without which our democracy is doomed. For my part, I do not look forward to a society which … campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
Here is the problem: all of us share that home with Mitch McConnell. And as long as McConnell leads the Senate, the chance of strengthening disclosure is as likely as the majority leader’s retiring to an ashram in Berkeley.8
If we lift our eyes from the legal arguments, the wreckage becomes clear. With no basis in fact, the Supreme Court in Citizens United imagined a world where the specter of McCain-Feingold was “chilling” the free speech of corporations. It then invoked this invented fear to justify unlimited donations and spending in our elections through largely unaccountable outside groups. Because of Citizens United, we now live in a world where an ordinary voter can make only a limited donation (a few thousand dollars) to a political candidate and must disclose it, while a billionaire casino owner in Las Vegas can contribute tens of millions to outside groups that can run ads without once mentioning the owner’s name.
As if this were not bad enough, the court’s rationale rests on the fiction that super PACs are independent. To pass the court’s test for independence, there must be an “absence of prearrangement and coordination.” In our campaign finance system, the FEC is responsible for making this determination, but it remains haplessly deadlocked and ineffective (as Congress designed it to be). It is common for a politician’s senior staff to leave a campaign in order to run the associated super PAC, even as all involved continue to share the same media buyers, consultants, and fund-raisers. Politicians may attend fund-raisers for super PACs as “featured speakers,” collect a small check for themselves, and, upon departing the event, leave behind a staff member to ask the crowd for unlimited donations.
The Land of Flickering Lights Page 9