Thoughts on the appearance of Super PAC/Candidate collusion and the Supreme Court decision not to revisit Citizens United…

What do you get when you put Karl Rove and Mitt Romney in the same place at the same time at a mega-fundraising event in Park City, Utah? If you answered the appearance of coordination and collusion between the Romney campaign and American Crossroads, then you likely understand the skepticism of many towards the Supreme Court’s 5-4 per curiam decision not to re-visit its controversial Citizen’s United decision. The Court’s American Tradition Partnership, Inc. v. Bullock decision on Monday virtually ensures that there will be no stopping corporate money from flooding into Super PAC’s at record rates during the November election. The decision to maintain the status quo also turns a blind eye to the fact that the American public is watching billionaires and corporations single handedly drive messages in support or against certain issues and candidates in advertisements that sound and appear remarkably similar to that of the political parties and their candidates. These increasingly obvious coordinative actions raise red flags signaling that perhaps the line drawn between Super PAC activity and Political Campaign activity has become blurry to non-existent.

The appearance of coordination and collusion post-Citizens United, a decision called “uninformed, arrogant, and naïve” by Senator John McCain in a recent interview with Meet the Press, has been severely exasperated at the Presidential level. With only two candidates in the race, divisive opposing views on almost every major issue, and because of the national media’s focus on the every move of the candidates and their associated/unassociated groups, hiding any type of coordination between PACs and Candidates is now virtually impossible. As hard and soft ads from the campaigns hit the airwaves, there have likewise been streams of Super PAC ads running that could easily be labeled candidate specific because the issues addressed have been framed in a manner where the lay person can easily tell what candidate backs or opposes the viewpoint or stance promoted. For example, with Karl Rove and the American Crossroads Super PAC, any concern over the appearance of collusion seems to run a distant second to attempting to humiliate the President with one-sided content and Republican talking points. It’s no secret that American Crossroads is a GOP operation run by former members of team Bush, and although they may technically be unassociated with the Romney campaign, there can be no doubt that Rove’s ads are purposefully directed at hurting Obama in an unabashed attempt to benefit the presumptive GOP candidate.

Still, what really takes the efforts of Rove and some other conservative Super PACs to the level of possibly violating campaign finance rules is the visibility of the biggest donors to outside groups at Romney campaign events disguised as fundraisers. It became obvious that the new rules would be tested at their limit during the 2012 Republican Presidential Primary, as Newt Gingrich and a Super PAC led by Sheldon Adelson campaign made no attempt to curb public perception that they were coordinating by appearing on stage together at multiple Gingrich fundraising events. The response from the guilty parties then was that it was not coordination simply to be seen together. But, at an event like the “fundraising retreat” for Romney in Park City, it is simply naïve to think that there is not backroom coordination occurring between big money donors and campaign staff. The question now becomes what can be done in the wake of the American Tradition decision to ensure that American voters are not having their voices diluted beyond what is acceptable under Citizens United and the US Constitution.

At this point, the implication from American Tradition is that nothing will be done at the Supreme Court level to change the rules despite growing evidence of their abuse. Any substantive changes will not occur until after the 2012 election cycle and will likely require a heightened level of proof of collusion and coordination to move the Court to seriously re-address the campaign finance issue. The conservative justices have taken a wait and see approach, while the liberal justices continue to point out many of the same concerns raised by this and many other articles on the post-Citizens United landscape. Therefore, it will be up to good reporting and increased accountability on the part of the American electorate and media to move the Court to act on the fact that coordination is in fact occurring. The Court has long considered the appearance of corruption as a compelling governmental interest, and evidence of such should be at the heart of any discussion on election rules in the United States. Unfortunately, because of American Tradition, Karl Rove and other GOP-tied Super PACs will be allowed to continue abusing campaign finance rules.

Thoughts on corporate personhood and future elections…

From the legendary arguments between Thomas Jefferson and Alexander Hamilton regarding the role of money in our new born democracy, to Santa Clara County v. Southern Pacific Railroad Company, and finally the most recent Supreme Court rulings on corporate electioneering communications, the ongoing debate over how the rights of interest groups and corporations should or should not exist in relation to the rights of individuals has been a constantly evolving one throughout our history. Most recently, we have seen the bitter emotions of this long running battle culminate with shaking heads during the State of the Union Address, and the emergence of yet another highly divisive chapter in our politics.

The debate has also generated some important questions: First, Given their inherent monetary power over individuals and small business owners, should corporations be able to advertise on behalf of candidates and special interest causes within 30 days of a general election and 60 days from a primary? Second, should companies who have foreign shareholders be allowed to put ads on the air which could, in theory, represent the interests of countries other than the United States? And finally, do the legal definitions of a “person” under Chapter 1, title 1 of US Legal Code, basically allow corporations, whether for profit or non-profit, to act as individuals with all of the protections granted to individuals under the Constitution? To answer these questions, we must look at the precedent set by the Supreme Court’s recent decision in Citizens United v. Federal Election Commission, 558 U.S.

The 2002 Bipartisan Campaign Reform Act (BCRA), often referred to as the McCain-Feingold Act, set the rules of the game up to protect the individual voter from being overrun by powerful corporate lobbies. To do this, the act put a federal ban on corporate financing of political campaigns, and prohibited corporations from airing ads that named federal candidates within 30 days of a general election and 60 days from a primary. Despite the laws set forth in the BCRA, the non-profit corporation Citizens United decided to go ahead and try to air an anti-Hillary Clinton film featuring her image on DirecTV before the 2008 Primary Elections. This action would have been in direct violation of McCain-Feingold., but after district courts upheld the precedent set in BCRA and upheld in McConnell v. Federal Election Commission, Citizens United appealed their case to the highest court, claiming their film was factual and non-partisan, thus the fate of corporate advertising in federal campaigns was once again put on trial.

In a complex 5-4 decision, the Supreme Court overruled the provision of McCain-Feingold that prohibited corporations from broadcasting electioneering communications that mention a candidate within the previously mentioned timeframe. Therefore, in the upcoming midterm elections, and the 2012 elections, barring a reversal by the Supreme Court, corporations will be able to put their monetary power behind partisan campaign advertisements.

Advocates for the ruling will mention that the court did not overrule the parts of the BCRA which ban political contributions by corporations and full disclosure in advertisements a law, but there is no denying that the individual person is in no way as powerful as a corporation with a given interest. They will also mention that by limiting corporations, we would also risk suppressing the media, which is an argument made by Justice Kennedy in the majority opinion.

As we move closer to the2010 Election, there could be an historic level of corporate advertising for candidates from all parties. Though it is made very clear in the law that no campaign funds may be collected from foreign corporations, there is nonetheless a sense of dissatisfaction amongst many that these changes to McCain-Feingold have allowed us to get very close to this kind of long distance financing. The full power of TV ads will be put on display, as individuals will see millions spent to sway public opinion in the name of corporate interest. Candidates will have little choice but to become prisoners to the powerful corporate special interest, as there will be no way to compete monetarily without adjusting to the new rules of the game.

Going forward, it will be a trying time for the little man, the small business people who can’t afford to advertise their cause, or the politician who wants to stick to his core values but knows he has no chance of winning an election without giving the go ahead for partisan corporate ads. It would also seem that in a thriving democracy every citizen should have the equal right to advocate their cause with the benefit of an even playing field. This is not the case after the Supreme Court’s latest ruling. There will likely be more competition for ad space created by corporate giants, and the richest Americans will likely benefit from the opening of the advertisement loophole, but, in the end, the realistic ability of the common American to be heard over the drowning power of corporate interests may be lost for now.