SCOTUS Ruling Spells Disaster for Political Transparency

It's hard to know just yet what the precise impact of the Supreme Court's landmark decision on campaign-finance reform this morning will be. But one thing is for sure: it will be huge. Dramatic, sweeping, fundamental, seismicall those adjectives apply to this alteration of the political landscape. In all likelihood, Republicans will be the biggest beneficiaries. They've had a long history of taking care of their corporate buddies. And with the Administration today opening a new front in their battle on Wall Street, you can bet the financial industry will happily raid their bursting cash coffers to support Republicans in November.

The decision is a stunning display of judicial activism from a chief justice who promised to engage in anything but. Remember all his promises to respect precedent? Apparently he doesn't. As E.J. Dionne writes: "Remember Roberts saying judges were like umpires calling the balls and strikes? In this case, he and his colleagues canceled the game altogether and decided on their own what the final score would be." Roberts expanded the scope of the initial case before him, Citizens United v. Federal Election Commission, to take on a century's worth of campaign-finance regulation. Dahlia Lithwick describes it perfectly: "The court had to reach out far beyond any place it needed to go....This started off as a case about a single movie. It morphed into John Roberts's Golden Globe night."

For their part Republicans are defending the ruling as rolling back infringements of free speech. They're wrong. The First Amendment protects an individual's right to free speech. Corporations are not individuals, although in this ruling, the Supreme Court equates the two. That leaves the door open for further challenges. Today's ruling focuses on independent expenditures but leaves in place the restrictions that bar corporations from donating to political parties or individual candidates. That's still the terrain of individual supporters and explicitly designated political action committees, which are also subject to strict rules. But with this ruling, it's easy to imagine a legal challenge to allowing direct contributions as well. After all, if corporations are give the same free speech protections as individuals when it comes to political campaigns, why can't they have the same right to donate? That argument might not pass muster with the Supremes, but I'd be willing to bet it will be raised.

A second Republican defense of the ruling invokes transparency. At a breakfast with reporters this morning (admittedly before the result was handed down), Minority Whip Eric Cantor was asked about the case. He focused on disclosure. "Any time we have moved in the direction that these bills like McCain-Feingold have taken us, what you've ended up accomplishing is taking away more transparency. Now you've got these outside organizations, 501c4s and 527s, that frankly are more opaque than transparent," he said. "Anything that moves us back towards that notion of transparency and real-time reporting of donations and contributions I think would be a helpful move towards restoring confidence of voters."

Cantor's deputy, Rep. Kevin McCarthy of California, shared a similar philosophy. "I watched in California campaign-finance reform and what's happened is...people now move money through central committees at the last minute so you don't get the transparency. It doesn't get [at] what the public thought was going to happen. The best way, the fairest way, is greater transparency. Let people understand where it is going and what's happening."

The big flaw with these arguments is that the ruling promotes, indeed lavishly fertilizes, that opacity that Cantor and McCarthy warn against. Sure Bank of America or Pfizer can now cut and air their own political aids, but will they? I'd venture that they won'tthey'll outsource in the muddiest possible way. Few corporations like being overtly political. They worry about alienating that part of their customer base who disagree with their politics, or don't care. They also rightly fear that explicit political activity compromises brand identities they've worked so hard to create. Let's say you're a liberal and the company that produces your favorite brand of recycled toilet paper and environmentally friendly dish-washing liquid starts running ads supporting a candidate running on a pro-life, anti–gay marriage platform. That's not going to breed your consumer loyalty. Corporations aren't like people: they rarely have consistent, thought-out, political philosophies or world views. They might produce environmentally friendly products, but they're doing that to make money, not out of a deeply held commitment to left-wing principles.

That's why independent expenditures are so popular. Bank of America isn't going to run ads itself. It's going to bankroll a nonprofit organization called "Citizens for Banking Justice" or some such name, and they'll make the ads. That imaginary recycled toilet paper company will just give money to a 501c3 called (for the purposes of this blog post) The Society for Family Values who'll run vicious attack ads. And now they'll be able to do so right up until election eve. Sure the ads will have to disclose their sponsor, but that sponsor is the fictional Citizens for Banking Justice or the like, not the financial institutions that really paid for it. Ultimately the corporations will have to disclose their donations, but how many voters will go the extra step to find out that information and relate it back to the ad they just saw? In all likelihood, those relationships will just become passing references in the few media outlets who analyze political advertising.

Today's ruling frees corporations to give unlimited amounts over unrestricted periods to organizations which explicitly endorse or criticize political candidates. That doesn't create more transparency, it simply provides an unprecedented financial boost to the murky world of independent expenditures. And that's bad news for the accountability of our political system.