Thanks to Citizens United v. Federal Election Commission (2010), political candidates from both both parties are doin' the Dirty Bopp. James Bennet (below) tells you how and why. If this is (fair & balanced) plutonomy, so be it,
[x The Atlantic]
The New Price Of American Politics
By James Bennet
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You may be one of those people who believe there is too much money in politics. (Polling suggests there are many such people—a vast majority of Americans, in fact.) You may believe that the larger the financial contribution, the greater the chance it will corrupt your representative in Congress, or even your president. You may believe that there are too many political advertisements on television, too many groups with blandly patriotic names trying to change your mind about energy or Medicare or national defense. You may even believe that the nation’s founders would be repelled by the idea of corporations and billionaires pouring millions of dollars into political campaigns. It is reasonable—it is quite respectable—to believe these things.
But if you are one of these people, what you believe is turning out not to matter very much.
What Jim Bopp Jr. believes is turning out to matter a whole lot more, and he believes the exact opposite. He believes in more money, bigger donations, more corporations and billionaires and outside groups making more noise, openly or anonymously. He believes, in fact, that there can be no such thing as an “outside” group in American democracy—he believes that’s the whole point of the republic.
It wasn’t so long ago that just about everyone who paid attention to how we pay for politics, whether liberal or conservative, thought Jim Bopp was nuts. They certainly thought so back when he first came storming out of the right-to-life movement in the 1980s, a no-name lawyer with a street-corner practice in Indiana swinging the First Amendment like a hatchet, striking at the Federal Election Commission, then at state government after state government—150 cases and counting—and taking his cause to the Supreme Court itself. Where others saw reasonable limits on politicking, he saw shocking suppression of freedom of speech, whether the stage was as big as a presidential campaign or as small as a student-council race at the University of California at Irvine. (He once won a case for a student candidate who’d exceeded the university’s spending limits by shelling out too much at Kinko’s.)
At the highest court in the land, standing in that deep well, with his wife and three daughters watching him, Bopp has gone four for six so far, knocking down laws and regulations that restrained money from entering politics. That record doesn’t count Citizens United v. Federal Election Commission, the campaign-finance case he brought to the U.S. Supreme Court but didn’t get to argue in the end. That’s okay, he’ll tell you—the majority largely endorsed his vision, striking down laws that blocked corporations and unions from spending as much as they wanted to elect or defeat candidates, and paving the way for a new type of political-action committee—the “super pac.” Everyone else just didn’t see what was coming as clearly as he did: the super pac would be the overpowering new weapon for Jim Bopp’s revolution.
So given that, so far, your views have turned out not to matter much, and Jim Bopp’s have turned out to matter a great deal, it may be instructive, if you’re wondering where our politics is headed, to listen to him for a change, instead of to the mainstream media and the “reformers”—he expels the word with considerable asperity.
“We are absolutely at the tipping point,” he told me recently, with unmistakable delight, over what he believes to be the best sushi not only in his hometown of Terre Haute, Indiana, but in the nation. “We’re in the second election cycle with super pacs, and now they’re going to equal candidate spending. Two years from now, they’ll exceed candidate spending by 50 percent. Once the Democrats realize there ain’t any going back on this, then their contributors will start realizing the only thing they can do is participate. Two years after that, it’ll be three times candidate spending.”
And Jim Bopp believes that by then—though probably before then—the incumbents, driven as they always are by a desperate desire to cling to their offices, will resort to doing what he’s wanted them to do all along. To have any chance of competing with the super pacs, they will abolish, or at least drastically raise, all contribution limits, to whichever candidate, from whatever source. And then the money will really start to pour in.
Indeed, the day before we had lunch, Illinois—which, like other states, regulates nonfederal elections—passed a new law saying that if a super pac spends more than $250,000 in a statewide race (not much money, as these things go), the contribution limits in that race will be eliminated.“We’re in the endgame,” Bopp told me with a smile of satisfaction. “It’s already begun.”
Campaign finance is a deeply boring subject, so eye-glazing that one might almost suspect a conspiracy to make it that way, considering its centrality to how the country is governed. The ways we pay for politics are defined by a series of interlocking mazes—of congressional statutes and federal regulations, court cases and state laws. But those mazes are built on top of some of the most basic ideas about the nature of the republic, about the right of free speech, the sources of power and corruption, and the relationships of citizens to the state and to one another. That foundation is shifting now, to a degree not seen since Watergate, and perhaps not in more than a century, with effects that even the most-experienced politicians are just coming to appreciate. In the wake of Citizens United (though not only because of Citizens United), the combination of permissive judges, paralyzed regulators, and a deadlocked Congress has emboldened political operatives—quite sensibly—to raise and spend money in ways they wouldn’t have dared before. Not since the Gilded Age has our politics been opened so wide to corporate money and donations from secret sources.
As Bopp argues, this new era has barely begun, and already, in this election season, we are experiencing a step change. In 2010, the first election year for super pacs, a total of 84 of these groups spent $65 million, according to the Center for Responsive Politics. As of August 23 of this year, 797 super pacs had raised more than five times as much—upwards of $349 million. Fully 60 percent of that money came from just 100 donors.
We are quickly becoming accustomed to this new magnitude of giving. Individuals, unlike corporations and unions, have always been free to spend as much as they want on politics, as long as they are acting independently of a formal campaign or political party. But aside from the occasional foray by a billionaire, like George Soros, they just never did so to the extent they are now—maybe because the new infrastructure, including super pacs, did not exist, or maybe because it just didn’t seem like a smart or respectable thing to do. Yet when Newt Gingrich closed out his campaign, he thanked one couple—the casino magnate Sheldon Adelson and his wife—for “single-handedly” keeping him competitive with Mitt Romney’s super pac, as if this was a noble rather than humiliating distinction for a presidential aspirant with a theoretically national network of support. For their part, the Adelsons turned around and gave $10 million to a super pac supporting the candidate they had been attacking, Mitt Romney. Just days after Congressman Paul Ryan joined the ticket as the Republican vice-presidential candidate, in August, he flew to Las Vegas to meet with Sheldon Adelson and other top donors behind closed doors at Adelson’s Venetian casino. (Adelson’s politicking was widely seen as evidence of his concern for the fate of Israel, though it is also true that his company is the subject of two potentially devastating Justice Department investigations.)
Super pacs are thriving, but they already seem almost old-fashioned. Yes, you can, if you want, create a shell corporation and funnel millions to a super pac without identifying yourself (it’s been done). But why not put your unlimited contributions into a fund that doesn’t have to identify you? In the post–Citizens United gold rush, political operatives are stretching an old IRS loophole, creating nonprofit “social welfare” groups, called 501(c)(4)s, that can raise and spend money on campaigning without disclosing their sources. In August, an investigation by ProPublica found that two such groups had put more money into the presidential campaign than all the super pacs combined—though the super pacs themselves had spent more than the political parties. “I enjoy anonymity,” Foster Friess, the Wyoming investor, told NBC News in August, in explaining his shift from super pacs to more-secretive vehicles.
In 1974, Congress established a public financing system for presidential elections, providing equal amounts for the major-party nominees, as long as they agreed not to raise money from private donors for their own campaign (though they could, and did, raise private money for a political party). Barack Obama, in 2008, was the first presidential candidate to reject this public funding. This year, both candidates opted out, and they have been putting a great deal of time into asking for money. In July, they both held more private events for donors than public events for potential voters. By late July, Obama had held a total of 194 fund-raisers in his third and fourth years in office—more than his four predecessors in the same period combined, according to a study by the political scientist Brendan J. Doherty, of the United States Naval Academy. In the same period, Ronald Reagan held three fund-raisers.
In 2000, spending on all federal races totaled about $3.1 billion. By 2008, it had risen 70 percent, to $5.3 billion. This year, it’s expected to be substantially more—though, given the amount of undisclosed spending, the sum may never be known.
“It’s a good thing,” Bopp told me. “We need more spending on elections. Most people don’t even know who their congressman is. Don’t even know their name or their party.” There are many reasons for this ignorance, he continued, but “part of it is a lack of relevant, pertinent information. The more money that is spent, the more individualized messages will be able to be funded. The more individualized messages, the more voters will feel that the message is pertinent to them, and the more they’ll learn.
”In the parallel political world—a world in which more money, more anonymity, and more spending by noncandidates are bad things, dangerous to democracy—the most plausible candidate to be Bopp’s foil is the lawyer Trevor Potter. Potter is also a midwesterner (from neighboring Illinois) and a Republican; like Bopp, Potter got his earliest political experience volunteering for Barry Goldwater. But his own love of constitutional law, study of the Founders, and adventures in Republican politics sent him down a very different intellectual path. Potter was one of the leading lawyers behind the Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold, the most significant campaign-finance law in 30 years. To a large extent, it is Potter’s work that Bopp has been systematically gutting. “Jim has always been in the position of making arguments that other people thought were wild-eyed, went too far,” Potter told me, a little ruefully. “And he’s proved them wrong.”
The two lawyers’ views about money and politics are precisely inverse: An outrage to one man is a reform to the other; a cesspool of corruption to one is a font of democracy to his antagonist; what to one is a clear-as-day rationale is to the other a deep, twisting rabbit hole. Bopp is the campaign-finance lawyer to right-wing causes and candidates; Potter is the campaign-finance lawyer to that right-winger-in-a-fun-house-mirror, Stephen Colbert, who has done a series of segments in which he has set up and deployed his own secretive campaign funds. Both lawyers are such effective advocates for their respective views that traveling between Boppworld and Potterworld can be a dizzying experience. You can find yourself wondering sometimes which man is the crusader for truth, justice, and the American way, and which is the bizarro version.
Given that such basic ideas about the sources of American democracy are in flux—that two such considered men can take such diametrically opposed views of them—you can also find yourself wondering: Does this mean that our democracy is vibrant, or that it is doomed?
They say in politics that where you stand depends on where you sit, and that may have something to do with how Bopp and Potter reached their respective conclusions. Bopp came to campaign finance via one of those “outside” groups, to borrow his air quotes: he was the general counsel for National Right to Life back in 1980, when the group got crosswise with the Federal Election Commission after it distributed voter guides describing where candidates stood on abortion and other social issues. The guides, which went out just before the election, were seen as important to the victories of Reagan and 12 new Republican senators. “So then the FEC immediately thought they ought to be outlawed,” Bopp told me grumpily. He sued to protect the guides, and won. Bopp is a Republican stalwart (he sees the Democratic Party as socialist), and he has done yeoman’s work for the party—among other accomplishments, he developed the legal rationale by which the Supreme Court decided Bush v. Gore. Bopp worked for Romney in 2008 and backs him this time. But his roots are outside the GOP establishment.
Bopp’s law office remains defiantly planted at the corner of Sixth Street and Wabash Avenue, in downtown Terre Haute, American flags hanging in its windows. When he showed me around the dusty, drought-hammered streets this summer, he waved at the emptied storefronts across Wabash, and the space still tenuously held by Rogers Jewelers (“The Diamond Store of Terre Haute”), which was in the midst of a moving sale. During his first campaign, in 1964, he recalled, the Republican Party occupied one such storefront, and two spontaneous citizens groups formed in two other storefronts to also campaign for Goldwater, outside the formal party. That would never happen today, he told me. “Why is that?” he went on. “The laws. You gotta get a lawyer, you gotta get an accountant—well, forget about it.” His voice was rising in frustration, or maybe with a passion to be understood. “See?” he asked me. “We’ve really lost something! We’ve lost involvement.”
Potter came to campaign finance five years after Bopp, via a presidential campaign. He was a fledgling Washington lawyer when Vice President George H. W. Bush assigned his firm the task of setting up the exploratory committee for his 1988 run. Potter ended up as the campaign’s deputy general counsel. During the primaries, he was stunned by how one of Bush’s opponents, Pat Robertson, evaded the rules governing disclosure and spending, using his corporate plane and his Christian Broadcasting Network to campaign. Even though his guy won, Potter remained troubled. “For me,” he said in one of several conversations over the past few months at his present D.C. firm, Caplin & Drysdale, “the takeaway was that the system wasn’t working. Bush was playing by the rules, Robertson wasn’t, and Robertson got away with it.” Where Bopp encountered a system that seemed devised to shut some groups out, Potter found one that seemed meant to treat candidates equally, but instead was being abused by some for unfair advantage. Bopp began suing the FEC, battering away from the outside; Potter surprised the Bush White House by saying he would like to become a commissioner at the FEC. He wanted to fix it.
The Federal Election Commission, whose very name seems calculated to induce indifference, was created by Congress to enforce the post-Watergate campaign-finance laws. Its six commissioners, who serve six-year terms, are supposed to work together without partisanship. But three commissioners come from each party, and they need a majority for any decision; they deadlock over anything that might disadvantage one side or the other. The commission is, as a result, both an emblem and a cause of our great governmental dysfunction. After the Citizens United decision, the commissioners took almost two years to agree to issue a request for public comment on whether they should change campaign regulations that the Supreme Court had invalidated.
During his time on the commission, Potter managed to raise its pulse a bit, persuading his fellow commissioners, for example, to enact rules limiting politicians’ personal use of campaign funds. But when several influential members of Congress complained about the new rules, Potter realized he would make no more headway with his colleagues. “They felt I had gotten them to do something that endangered their reappointment,” he told me. “After that, I couldn’t get any more reforms.”
With his FEC term ending, Potter took a sabbatical of sorts in the fall of 1995, to teach at Oxford and research other electoral systems in hopes of finding a better financing model. This proved a more fruitless undertaking than trying to fix the FEC. “Every system I looked at, I said, ‘We can’t do that,’ ” Potter recalled. It is, for example, a shopworn lament of right-thinking people that the United States doesn’t have a compressed campaign cycle like the British, who confine their campaigning to about a month. The reason the United States can’t have such limits, or those of any of the other systems Potter looked at, is that it has something all those nations lack: a broad constitutional right to free speech. (Some campaign-finance lawyers enjoy mimicking Jim Bopp’s habit, in his many court arguments, of passionately quoting “Congress shall make no law … abridging the freedom of speech” before wondering what, exactly, could be more clear than that?)
Potter, who is not given to despair, decided to attack the problem from a new angle. He returned to Washington and the practice of law, and then went to see Senator John McCain, who was at work with his Democratic colleague Russ Feingold on a campaign-finance law. They were hoping to rein in the practice (perfected, if that is the word, by the Clinton campaign in 1996) of raising vast amounts of so-called soft money. This money, like the funds raised by super pacs today, could come in unlimited amounts. But the parties had to disclose the sources of their money, and in theory, they had to spend the donations to advance issues rather than to promote or attack candidates. In practice, the parties skirted the legal requirement that they not “expressly advocate the election or defeat of a candidate” by not telling viewers how to vote but instead urging them to call a particular candidate and tell him, in effect, what a scumbag he was for being wrong about some matter.
Potter had a message for the two senators: he didn’t think their bill, as then written, would pass muster with the Supreme Court. Potter remembers Feingold reacting angrily, but McCain calming him down by saying, “I am not spending seven years of my life to pass something that is going to be declared unconstitutional. We need to get this right.”
And so Potter spent several years (interrupted by a period as McCain’s general counsel for his 2000 presidential bid) as a part-time volunteer working to recast the bill. McCain-Feingold had two goals: to ban soft money, and to regulate the sorts of political advertisements that attacked candidates while masquerading as being about issues. Its upshot was to ban corporations and unions from paying for candidate-specific ads in the middle of a campaign. To protect the law before the Supreme Court, Potter advised the senators to set its foundation in Austin v. Michigan Chamber of Commerce, a 1990 case in which the Court had ruled that limits to politicking by corporations did not violate the First Amendment. The Bipartisan Campaign Reform Act of 2002, signed into law by George W. Bush, was a historic achievement of campaign-finance reform—and in retrospect, maybe its high-water mark.
It took Jim Bopp and his allies eight years and three trips to the Supreme Court to knock down McCain-Feingold’s obstacles to corporate and union money. But Bopp finally got what he wanted: in Citizens United, in 2010, the Court not only invalidated the McCain-Feingold restrictions, it tore out the foundation Potter had relied upon, overturning its own precedent by declaring that Austin had been wrongly decided. McCain-Feingold may have made history, but Citizens United went back and rewrote it.
When I first spoke with Potter about Citizens United, last November, he was still trying to understand how the majority could have come to what he saw as such a wrongheaded decision. Part of his explanation then was that, since Sandra Day O’Connor had retired, there was no sitting justice who had ever run for office. None of the justices really understood the risks of corruption created by endless fund-raising and well-financed independent campaigns seeking specific legislation, and so they failed to defer to Congress, which knew the dangers firsthand.
But Bopp argues that the issue is not that the Court doesn’t understand how politics works; it’s that the Court understands politics all too well, and precisely for that reason should not defer to Congress on campaign matters. To Bopp, any attempts by sitting politicians to restrict money in politics are inherently suspect. “There is nothing they are more interested in, more attached to, than their own election,” he told me. “Only some of them have wives they’re more attached to than their own election.”
Slender, silver-haired, and genial, Bopp usually comes across as what he might have been—the third in a generational line of doctors in Terre Haute. But when he encounters an argument he really doesn’t like, Marcus Welby vanishes and a far harder customer takes his place. Bopp’s brow contracts and his husky, slightly whistling voice tends to climb and acquire a raspy edge. This Bopp came into focus as he warmed to his argument about how the overriding self-interest of incumbents undermines the pious claims of reformers.
“Okay, this is where the reformers have a real problem,” he said, picking up speed. “On the one hand, they say, ‘We need really low contribution limits, because we know all these politicians are so inherently corrupt that the smallest contribution could create undue influence.’ At the same time, when they pass campaign-finance laws, they’re sacrificing their self-interest.” His whole face seemed to clench: “Bullshit!” How could anyone think that politicians who might be bought off by a single contribution would turn around and write laws to give challengers a fair shot at unseating them? “That’s a ridiculous position,” Bopp concluded, his voice and expression calm again, if icily dismissive.
While candidates care obsessively about their own elections, a political party has broader interests. It wants to secure a majority, so it often backs challengers to the other party’s incumbents, rather than just protecting its existing officeholders. For Bopp, McCain-Feingold was part of the incumbent-protection racket, an attempt to “kneecap political parties” by depriving them of soft money, shutting them out of campaigning just like the insiders once tried to shut out the right-to-life movement.
This summer, the Court summarily reversed a case that would have given it the chance to revisit Citizens United by examining the corrupting effects, in the real world, of so-called independent expenditures. That’s when Potter abandoned his hope that the Court was simply being naive and concluded that its majority was living in Boppworld. “It is clear,” he told me, “that Justice Scalia and others think that anything Congress does in this area is self-serving incumbent protection.” Yet Potter, who is waging his fight for reform through a nonprofit he created, the Campaign Legal Center, thinks Jim Bopp and his allies are overplaying their hand. While the Court’s conservative majority may have blocked efforts to restrict contributions, it has also signaled that it believes the other branches of government have the authority to act against the fastest-growing source of political money—the mysterious groups that refuse to identify their donors.
There is nothing inherently evil about money in politics. In a world where Coca-Cola spends $3 billion a year promoting soft drinks, is it really unconscionable that we might spend $6 billion (and counting) every four years promoting (and, yes, attacking) candidates for federal office? And, as Bill Clinton once said—during a fund-raiser, while fending off a fund-raising scandal—you can’t take the politics out of politics: seeking money is like seeking votes, and if politicians learn something from the experience, that is not necessarily a bad thing. It was at a prospecting event for political money among Los Angeles elites last year that Joe Biden met the children of a gay couple and had his epiphany that gay marriage was not evil. Whatever you think of gay marriage, that encounter at least prompted the White House to end its ducking and weaving on a big question and take a stand.
Yet if political money is not wicked in principle, it has often proved troublesome in practice, with the trouble growing in proportion to the cost of campaigning and the need for more money—and also in proportion to public cynicism about politics. Once professional politicians began displacing wealthy gentlemen in elected office, in the mid-1800s, they quickly discovered a handy way to pay for the campaigns they couldn’t afford themselves: demanding money from people in return for government jobs. This did not necessarily produce a high standard of government worker, but politicians didn’t revise their approach until a campaign supporter of James Garfield’s, denied a government post, shot the president dead. The result was the creation of the civil service through the 1883 Pendleton Act, which cut off patronage as a source of political money and had the unintended consequence of driving politicians toward another source: big corporations.
The booming new concerns of the Industrial Revolution—oil, steel, rail, finance—began pouring money into campaigns, in pursuit of specific policies, particularly protectionist tariffs. Journalists would joke about “the senator from Standard Oil,” and Mark Twain observed in The Gilded Age that Congress was for sale, noting that when it came to buying representatives, “the high moral ones cost more, because they give tone to a measure.” In 1896, Mark Hanna, Karl Rove’s idol as a political operative, used the specter of the populist Democratic nominee, William Jennings Bryan, to garner contributions from banks equal to 0.25 percent of their capital bases—sort of an informal tax on behalf of his candidate, William McKinley. Hanna spent Bryan into the ground.
Over the ensuing years, journalistic and legislative investigations into corruption eventually ensnared a Republican president and prompted him to demand the first thoroughgoing campaign-finance laws. Teddy Roosevelt told Congress in 1904 that there was “no enemy of free government more dangerous and none so insidious” as corruption, and in 1905 he came back at Congress again, insisting, “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.” A Senate report on the resulting legislation, known as the Tillman Act of 1907, noted, “The evils of the use of [corporate] money in connection with political elections are so generally recognized that the committee deems it unnecessary to make any argument in favor of the general purpose of this measure.”
Down through the decades, the rising political power of other groups, like unions, prompted new restrictions. The biggest reset of the fund-raising rules came after Watergate, which is remembered largely for the break-in and cover-up but was also a whopping campaign-finance scandal. Donors gave money to Richard Nixon’s reelection campaign in exchange for ambassadorships; the Associated Milk Producers promised $2 million to the campaign, and the president hiked up the federal subsidy for milk. In all, 31 executives from companies like ITT and American Airlines were charged with giving money for government benefits, and Congress in 1974 enacted a new, extremely rigid campaign-finance regime: it set up the FEC and public financing for presidential campaigns, and it restricted not just campaign contributions but campaign spending. Two years later, in the landmark case Buckley v. Valeo, the Supreme Court struck down the spending limits, saying they undermined free speech. But the Court said that Congress could restrict contributions, to avoid “the actuality and appearance of corruption.”
Corruption, of course, can occur across a wide spectrum, and it can appear to occur across an even wider one. Since Watergate, there have been a handful of egregious instances, like the Indian-casinos scandal of the last decade, in which the lobbyist Jack Abramoff supplied campaign money, along with bribes in the form of skybox seats and a golfing trip to Scotland, in exchange for legislative support for his clients.
But such clear cases are at the extreme. Corruption—or its appearance—tends to take more-amorphous forms, like the spectacle of five senators pressuring bank regulators on behalf of a big contributor (the Keating Five scandal, which, in an echo of Roosevelt’s campaign for reform, turned one of those senators, John McCain, into a crusader for tighter rules—a challenge to Bopp’s notion that incumbent self-interest, rather than something more hard-earned and principled, drives reform). Or like the spectacle of President Clinton insisting that he did not rent the Lincoln Bedroom to Democratic Party donors and that, in his last hours in office, he did not pardon the financier Marc Rich in exchange for money for the Democrats. This is all fairly tawdry, but is it corrupt?
As a member of the White House press corps, I once joined in the contest as Bill Clinton spent 51 minutes, one hand casually tucked in a pants pocket, parrying questions about his fund-raising. “I can tell you this: I don’t believe you can find any evidence of the fact that I had changed government policy solely because of a contribution,” he told us at one point. It was an artful dodge—a deft flick of the adverbial cape over the charging bull—and, I suspect, it was the simple truth. The question, of course, is how much of the unspoken “partly” we can, as a democracy, successfully abide alongside that “solely.”
“This is a very sophisticated system,” says Fred Wertheimer, the president of Democracy 21, who has been fighting for tighter controls on political money since the Watergate days. “That’s the beauty of the system for these guys. This is a legalized-bribery kind of system where no one has to say anything. I don’t have to say what I want—you know what I want.”
Hardest of all to discern, he said, is what action doesn’t happen as a result of campaign donations. What subsidies are left in place? What bill inconvenient to some interest languishes and then dies a quiet death? This is an old Washington game. In the run-up to the vote on the Tillman Act itself, The Washington Post editorialized that “boodle is become an indispensable factor in our elections” and wondered if Congress would find a way to avoid passing the politically popular campaign-finance bill. “No man in Congress dare say a word in opposition to it; no man in Congress dare vote against it,” the paper declared. “The only way to beat it is to lose it in the shuffle.” The Post added: “Is it already lost in the shuffle?”
Such political games take a toll on the citizenry. In its Citizens United decision, the majority wrote, “The appearance of influence or access … will not cause the electorate to lose faith in our democracy.” But polling suggests otherwise. Indeed, voters have good cause to wonder which branch of government is taking their views of politics into account. Citizens United itself appears not to have helped matters. Early this year, a study by the Pew Research Center found that a strong majority of people—of whatever political persuasion—who had heard about the Court’s decision felt that it was having a “negative effect” on the 2012 campaign.
Jim Bopp doesn’t worry much about that public attitude. He sees it as a reflection of healthy skepticism of politics in general. As for the distortions and contortions of how politicians gather money and then perform in office, he sees those as a function of a crazy system that, by restricting money in the financing of candidates’ campaigns, sends it off into other sorts of less politically accountable groups. “This is not the best system,” he told me. “The best system is the most accountable and transparent system.” The way to achieve it, he argues, is to lift contribution limits. On some days, he says, he wakes up feeling a bit cynical, and he thinks to himself that maybe there should be a $100,000 limit on contributions to members of Congress. “I do think you can buy a congressman or two for $100,000,” he said. But that’s only on some bad days. “Other times, I wake up not as pessimistic and cynical, and I say: ‘No limits.’ ”
It’s a seductive idea. Maybe all the money flowing into super pacs would instead flow directly to the campaigns. But on reflection, it’s not clear why this is an either/or proposition. Super pacs have proved useful to candidates not just as vehicles to raise unlimited contributions, but as allies that create particularly nasty ads that the beneficiary can distance himself from. It is also hard to imagine why the donors who are now choosing not to reveal themselves would suddenly want to step into the light of day.
The growing river of anonymous money is a result of the brokenness of our political system; no branch of government made an affirmative decision to let this money in. If it chose, the IRS could demand that the politicking social-welfare nonprofits, as well as business associations like the Chamber of Commerce, disclose their secret donors. In July, Senate Republicans filibustered a bill, the Disclose Act, that aimed to compel groups to name the big contributors behind political advertising. In Citizens United, eight justices favored disclosure (Clarence Thomas was the exception). No less a conservative light than Antonin Scalia, in a 2009 case, declared:
Requiring people to stand up in public for their political acts fosters civic courage, without which 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.
Bopp had an answer ready when I asked him about the Scalia quotation: “I’m for political courage. I’m not for government-fostered harassment.” He didn’t mention it, but corporations are particularly vulnerable to a backlash when they publicly play at politics. In fact, corporations—except for the odd shell company—do not appear so far to be giving much to super PACs, which must name their contributors. But money from anonymous sources is pouring into the politically active social-welfare nonprofits and trade associations. Last year, as Aetna’s president publicly supported President Obama’s health-care-reform bill, the company gave $3.3 million to a nonprofit attacking lawmakers who backed it—a fact that became known only because the company mistakenly revealed the donation to insurance regulators. Aetna also accidentally disclosed that it gave more than $4.4 million to the Chamber of Commerce.
Bopp doesn’t argue that the government should never demand disclosure. His point is more nuanced. He sees some cost—some loss of free speech, some constraint on a citizen’s freedom of political action—whenever the government steps into the picture. That cost simply isn’t justified, he says, when it comes out of the hide of groups pushing specific positions, which is what the mysterious nonprofits, like the old soft-money organizations, are supposed to do. “That’s the currency of democracy—talking about issues,” he told me over our sushi lunch.
I advanced the argument that voters should know the interests of anyone advocating a political position, because otherwise they might be deceived. But Bopp thinks that it’s up to the listeners to choose whether to pay attention to anonymous speech, and that the government, or the reformers, have no business deciding what anyone ought to know. “Now, you’re saying that, well, the reformers decided that the listener, even though they’re prepared to listen to anonymous speech, should want to know, because otherwise they might be misled,” he said, the rasp returning to his voice. “Well, who are the goddamn reformers to say this?! Who are they to decide this for Joe Blow out here?”
But isn’t the distinction between groups advocating candidates and those advocating positions fairly blurry? The second group is also seeking to affect the election, isn’t it? “They’re influencing the vote?” he replied. “So what? So are you.” But at least I was putting my name on any story I might write.
“Oh man, there’s all sorts of things you don’t disclose about yourself that people might find relevant when you write a political piece,” Bopp replied. “Don’t you think the government ought to try to figure out what that is, and make you do that?”
Right. About me. Well, it so happens that my brother, Michael, is a senator from Colorado. In the inaugural cycle for super pacs, in 2010, Michael was the top target, and conservative super pacs outspent liberal ones in his race that year nearly 3-to-1. More “outside” money, including more money from undisclosed sources, was spent on his race than on any other race in the country—upwards of $30 million. I had the peculiar experience of sitting with him, in his home in Denver, late at night, late in the campaign, watching commercial after commercial during the 11 o’clock news attacking him. His image was distorted, the voice-overs were ominous, and all in all, the ads made him seem like a devil. In between the ads attacking my brother, I saw ads doing the same thing to his opponent and to candidates in other races (one particularly preposterous advertisement attacked a congressman for supporting “Viagra for rapists”). To me, all this advertising seemed less like the currency of democracy than like a grotesquely stupid exercise to enrich political consultants and local television stations, and to drive voters away from polls.
So in writing this story, am I acting as part of the incumbent-protection racket? It seems like a fair question—but one that might get asked only if my name is on the story; once the reader has that information, the rest is just a Google search away, with no government intervention necessary.
Fictional political comedies—like this summer’s "The Campaign"—are seldom funny; the targets of their too-gentle satire are usually well ahead in the race to the bottom. This is the genius of Comedy Central’s Jon Stewart and Stephen Colbert: they have updated Michael Kinsley’s maxim (often applied to campaign finance) that the real scandal is what’s legal, by demonstrating that the real joke is what’s real. For more than a year now, Trevor Potter has served as Colbert’s lawyer while the comedian first weighed a presidential bid and then turned to meddling in others’ campaigns. Even after Potter started the gig, it took him a while to fully appreciate the joke: When lawyers for Viacom, which owns Comedy Central, raised concerns about whether, as a corporation, it might run afoul of certain campaign-finance rules if Colbert promoted his PAC on the air, Potter, like a good Washington lawyer, told Colbert over the phone that he could deal behind the scenes with Viacom’s election lawyer. “Don’t do that,” Colbert told him. The whole point, he explained, was to work through the legal questions on television.
The result has been a Peabody Award–winning series of segments chronicling Colbert’s efforts to negotiate the new landscape of political money. In one segment, a despondent Colbert made a show of shredding the paperwork for his PAC after Viacom objected that it could get in trouble for making a contribution in the form of airtime to a political-action committee. Potter—hands clasped across his stomach, handkerchief peeking from the breast pocket of his dark suit, slight smile subverting his heroic attempt to keep a straight face—explained to Colbert that he could put Viacom’s fears to rest simply by turning his conventional PAC into a super pac.
“What’s a super pac?,” Colbert, instantly alert, shot back. “Is that, like, a PAC that got bitten by a radioactive lobbyist? What—what’s a super pac?”
Potter explained how Citizens United had opened the door to a new kind of political-action committee that could raise limitless contributions from corporations and unions, as long as it spent the money independently of any campaign. All Colbert needed to do was attach a new cover letter to his miraculously reconstituted PAC forms, explaining his intention to raise “individual, corporate, and labor funds in unlimited amounts,” words Colbert read aloud with an almost pornographic relish.
“Oooh, I like the sound of that,” he said. “Unlimited’s got a certain poetry about it.” He dispatched Jay the Intern via pony to deliver the forms to Washington.
Elements of the Supreme Court’s theory in Citizens United seem to have little connection to politics as it is actually practiced. The majority reasoned that “by definition,” all of this new money could not be corrupting, since “an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” How could a politician be influenced by donors when he has no idea what they’re up to? In reality, of course, close allies and recent aides of the candidates run the super pacs. Romney has described a donor to one of his supportive super PACs as having given “to me,” and Rick Santorum referred to a group that backed him as “my super pac.” Karl Rove, who co-founded the super PAC American Crossroads and a nondisclosing 501(c)(4), Crossroads GPS, famously joined in Romney’s Park City donor retreat in June. But even if campaigns and “outside” operatives don’t coordinate their plans in back rooms, they keep each other informed by telegraphing their forthcoming moves through the press.
This confusion about “independence” is not entirely the Court’s fault. The Federal Election Commission could enforce more independence. It hasn’t. After a state Democratic Party stretched the known limits for coordinating with a campaign last year, American Crossroads, Rove’s super PAC, wrote the FEC seeking assurances that it could do the same thing on a grander scale without running afoul of the rules on “coordinated communication.” Here’s what American Crossroads had in mind as sufficiently uncoordinated: “These advertisements would be fully coordinated with incumbent Members of Congress facing reelection insofar as each Member would be consulted on the advertisement script and would then appear in the advertisement.” The commission deadlocked and never responded—which in the trade is taken, reasonably enough, as permission to proceed.
The segment in which Colbert created his super pac also underscored a profound legal—maybe even philosophical—shift wrought by Citizens United. In wiping out McCain-Feingold’s ban on contributions from corporations and unions to “independent expenditures,” the majority opinion, by Anthony Kennedy, resoundingly endorsed the idea that for purposes of politics, corporations are the same as people, with the same protection under the First Amendment. “The censorship we now confront is vast in its reach,” the majority thundered, before quoting from a partial dissent by Antonin Scalia in an earlier case brought by Bopp: “The Government has ‘muffle[d] the voices that best represent the most significant segments of the economy.’
”Over the decades, the Court has been less consistent on free-speech rights for corporations than the majority made it sound; conservative justices have been on both sides of the question. Indeed, the Court in Citizens United glided past some big questions, including, for example, whether a globe-spanning company, such as an oil company, has the same right as an American company to spend unlimited sums on American elections (as Justice John Paul Stevens acidly observed in his dissent: “The majority never uses a multinational business corporation in its hypotheticals”).
There is plenty of precedent for regulating certain types of speech by corporations: they aren’t allowed to lie to manipulate their stock prices, for example. The Court has drawn a distinction, however, between commercial and political speech. For the latter, the First Amendment protection is now all but absolute. But can a corporation engage in political speech that is not commercial? If its purpose for existing is to maximize shareholder value, shouldn’t all its political action be aimed at that objective?
Jim Bopp finds the question a bit silly. As a political matter, opening the door wide to corporate money has merely erased Democratic advantages in union ground support and media sympathy, in his view. And as a matter of law and common sense, he sees corporations as people, not reducible to a single interest. “They’re not a robot or an automaton,” he told me. “They’re real people making real decisions about what their group does.” The rights of the people who work for them transfer to the corporations, and the corporations, like the people who make them up, have interests beyond producing fat quarterly dividends. “I mean, these same corporations are giving to the NAACP,” he said. “Does anybody bitch about that? You know? That money isn’t going to shareholders.” Companies, he said, “just have a broader mandate than apparently the reformers want to give them in the political sphere. It is not only maximizing profits. It is advancing the economic interest of the corporation, in many different ways.”
To Potter, the focus even on a broader economic interest sets a corporation apart from a citizen. “I’m not an anticorporate guy,” he hastened to tell me. But citizens have a very different approach to politics. “All of those individuals have lots of calculations and lots of different interests at stake,” he said. “You look at something, and the range of your decisions is: Is this decision affected by my religion? By my moral values? By whether they’re going to raise or lower my taxes—whether I’m going to have more take-home pay? By whether the schooling is going to be better for my grandchildren? By whether I think war is morally wrong? By whether I think we should be safeguarding our future in the Far East? All these sorts of questions are at play when an individual makes a political decision of who to support.” But, he added, “that’s not what a corporation does. It’s not what it’s supposed to do. It is supposed to figure out how to get more out of the government, how to get a policy that benefits it at the expense of its competitors.”
The majority in Citizens United implicitly endorsed a narrow, corporate approach to politics. In its hymn to the new era of disclosure, the majority noted: “Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits.” That is, shareholders can punish a company if it makes the mistake of politicking in ways that don’t bring it profit. It is hard not to read that as: For a corporation, political speech is commercial speech—and that this Court’s majority regards that as a good thing. (After all, corporations are the voices that “best represent the most significant segments of the economy.”) If that’s so, why can Congress ban direct corporate contributions to federal candidates, as it has since 1907? Jim Bopp has cases in the works to challenge the constitutionality of that restriction.
History’s pendulum is now swinging back toward the days when political finances were only lightly regulated, when the system was more open to the cacophonous participation that Jim Bopp loves, and more vulnerable to the corruption and capture that Trevor Potter fears. Reformers who have been around a long time are betting that an old political cycle will repeat itself—that a permissive era will produce a scandal that will produce new rules. “Look to history,” says Fred Wertheimer of Democracy 21. “It’ll come from the American people. It’ll come from scandals. The history for me is the saving grace here, being old enough to have lived through this before.”
Maybe so. Maybe a big campaign-finance scandal will break the congressional logjam blocking the Disclose Act. And, short of achieving a new majority on the Supreme Court, there are levers that a reform-minded administration might pull. The FEC could write regulations ensuring true separation between the candidates’ campaigns and super pacs. (Obama may have pledged to change our politics, but he has shied away from seeking to replace the five FEC commissioners whose terms have expired, leaving the deadlocked incumbents in place.) Maybe, in the wake of a scandal, the IRS might move to tighten restrictions on the risible social-welfare nonprofits and the politicking trade associations. A scandal would surely put some political weight behind the innovative notions for public financing bubbling up from various cities and states. And having reversed itself once, the Supreme Court might do so again, though Bopp, from hard experience, calls that a “slender reed.” “Well, Roe v. Wade hasn’t been overturned, despite how many Republican presidents?” he said at one point, with some bitterness.
Yet the revolution in the ways we pay for politics has come about not just because of Citizens United and related cases. The legal changes have really just validated, and encouraged, a broader societal shift. As commercial speech has come to penetrate almost every aspect of our lives, it seems only natural that incessant fund-raising and once-staggering contributions would become the wallpaper of politics. Earlier this year, CBS announced that the network’s profits would rise by $180 million in 2012 thanks to the boom in political advertising. “Super pacs may be bad for America,” said Les Moonves, the company’s CEO, “but they’re good for CBS.” The advertising-research firm Borrell Associates has estimated that, from the local level on up, politicians and operatives will spend $9.8 billion on advertising this year. If money is speech, why shouldn’t political speech be both a source and form of commerce?
For these reasons, among others, there is joy in Boppworld. And the prospect of an end to all contribution limits is even more cause for hope. “The reason politicians spend so much time raising money,” Bopp explained to me, is “low contribution limits.” Fewer, bigger donations would allow politicians to spend more time with voters. And voters are the ones who would ultimately control politicians’ destinies, punishing the corrupt and rewarding the virtuous. I don’t doubt that Bopp believes this. His is an optimistic vision, fundamentally, about Americans and their politics. I hope, if we keep on our present course, that he turns out to be right.
But if we do keep living by the rules of Boppworld, there’s an alternative scenario, one that doesn’t involve either a second Watergate or renewed democratic vitality. America is a far different country today than it was during Watergate. There are many more billionaires, many more people for whom a potentially game-changing political contribution is merely a rounding error. When the Watergate scandal crested in 1974, the wealthiest 1 percent of Americans controlled about 9 percent of all income; in 2010, even after the crash, they held about a fifth of it. If you were part of the top 0.1 percent of the population in 1974, you made, on average, barely $1 million; in 2010, you made more than four times that.
During the same decades—and not coincidentally—American business has grown far more sophisticated at playing politics, in reaction to the expansion of the government’s regulatory role under Johnson and then Nixon. In 1971, the future Supreme Court Justice Lewis Powell, then a corporate lawyer, wrote a memo to the Chamber of Commerce that reflected a dawning realization: “Business must learn the lesson,” he warned, “that political power is necessary; that such power must be assiduously cultivated; and that, when necessary, it must be used aggressively and with determination.” Over the subsequent years, the lobbying industry boomed, organized labor declined as an economic and political force, and business groups became adept at assiduously cultivating friends on both sides of the aisle.
It used to be that incumbents could gauge roughly how much money they would need to raise for an approaching race. Now, under the threat of vast, wholly unpredictable sums coming from unknowable sources, they can never feel confident that they have raised enough. That means everyone will need to raise more money all the time. If the new wave of money proves decisive up and down the ticket this fall, politicians of both parties may become even less likely to push policies unpopular with established interests. This need not mean that illegitimate interests would be heard. It need not mean that the kind of quid pro quo deal-making that led to the Watergate scandal would ensue. The result could be less dramatic and less obvious than either of those: Even as a politicized press keeps exaggerating small differences, the political debate would continue to narrow. Over time, the great political contest of ideas—the one Jim Bopp and Trevor Potter both celebrate—would become even less of a contest.
Our politics has more than one kind of incumbent. There are the officeholders, and there are the people and corporations that have already made it in America, that want to protect and enlarge the advantages they get from the government. It seems quite plausible that all of their interests are now coming into alignment.
See the video of James Bennet's interview with Trevor Potter here. Ω
[James Bennet is the editor-in-chief of The Atlantic. Bennet studied at Yale University, where he earned a Bachelor of Arts degree. He is the younger brother of U.S. Senator Michael Bennet (D-CO).]
Copyright © 2012 The Atlantic Monthly Group
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Sapper's (Fair & Balanced) Rants & Raves by Neil Sapper is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. Based on a work at sapper.blogspot.com. Permissions beyond the scope of this license may be available here.
Copyright © 2012 Sapper's (Fair & Balanced) Rants & Raves