Gaming American Democracy: How Republicans Are Now Determined to Buy Political Power

Posted in: Election Law

This is Mr. Dean’s fourth column in this series, which started in September 2011—Ed.

Last Fall, I wrote about Republican strategies to twist our system, including disenfranchising voters to defeat Democrats in 2012 as well as by using blatant obstructionism in the governing processes and then by blaming President Obama.  These efforts have worked well, and Obama is in a true race with Mitt Romney, the GOP standard-bearer, to remain in office.  But the GOP is not interested in a true race, or a level playing field; rather, they are determined to triumph in the 2012 contest by using their greatest advantage: Money.

In the run-up to the 2012 presidential election, we are witnessing a new phenomenon, as anonymous corporate money redefines American democracy.  This is truly a sea change, as both conspicuous and covert corporate money are now flooding our political system, following the U.S. Supreme Court’s (5-to-4) partisan ruling in Citizens United v. FEC, which lowered the longstanding barriers prohibiting corporate spending in political campaigns.  As Bill Moyers commented (in a speech to Public Citizen), the High Court has, in essence, carpet-bombed all remaining restraints on a dysfunctional electoral process, much to the advantage of the Republicans.

Now, Money Isn’t the Life Blood of Politics; It Is the Game Itself

Currently, it is estimated that a staggering $11,000,000,000 will be spent on behalf of President Obama and Mitt Romney in their presidential election contest, with Romney being the first contender in history to outspend an incumbent president.  Even more money will be spent on the Congressional, state and local Republican tickets.  Across the board, Republicans may outspend Democrats 3- to-1 in this election cycle, with the ratio climbing much higher in many targeted races.

Even before Citizens United was handed down, political candidates were already concentrating more time and energy on raising money than they were on thinking about how to fix the nation’s problems.  That was a situation facing everyone running for office in the courthouse, the state house, and the White House. Today, however, seeking public office means endless efforts at fundraising.

Frankly, I worry that 2012 may be the beginning of the end of political power for Democrats, because they simply do not have the same access that Republicans do to big money, and to the corporate donors who have now come to play a massive role in politics, operating on an even greater scale than they did during America’s regrettable Gilded Age.  This contest is all about greed, with corporate America willing to do anything to make itself richer. As the Republican Party has made it clear that it is willing to assist corporate America, it must seem to the corporations to be an excellent investment.

I should note in passing that assisting and guiding American corporations in their new endeavor of politics are political consultants.  Indeed, I am told that the political consultant business is currently booming, and that those who make up the “Who’s Who” in this line of work are becoming wealthy beyond their wildest dreams. For example, take Karl Rove.  I would be surprised if he has not become a multi-millionaire by now.

Building Covert Money Machines on the Precedent Set by Citizens United: Secret SuperPACs

Here is the scheme that these political professionals are running for corporate America: The High Court issued its ruling in Citizens United in January 2010, holding that government cannot prohibit unions and corporations from making “independent expenditures” for political purposes.  Within two months of that ruling, the U.S. Court of Appeals for the District of Columbia ruled in v. FEC that the government could not limit the size of such contributions.  Thus, the super political action committee (SuperPAC) that was engaged in political advocacy, was born.  And big corporate money became active in political advocacy, almost exclusively favoring Republican positions and values.

Corporate donors have been shrouded in secrecy because the SuperPACs created related 501(c)(4) organizations.  These non-profit organizations—unlike 501(c)(3) charitable organizations—can not only keep contributors anonymous, but can also engage in political campaigning, and electioneering, as long as their “primary purpose” is promotion of “social welfare,” rather than political advocacy.

With money to hire the best legal minds, so far these 501(c)(4) organizations are succeeding at hiding their corporate sources.  Again, using Karl Rove’s operation as an example, they created American Crossroads as a SuperPAC (or, more specifically, a so-called “527 committee”), and then they created a related 501(c)(4) organization, Crossroads GPS.  The 527 must report its contributors; the 501, in contrast, need not report its contributors.  Yet distinguishing what these two organizations are each doing is so technical, when they even bother to do it at all, there is no real difference.

And what are these types of organizations, in fact, doing? This is the second election cycle since Citizens United was handed down.  Following the first post-Citizens United elections—the 2010 midterm elections—the Public Advocate for the City of New York made a study of the impact of Citizens United.  He found not only an increase in political spending and an increase in anonymous political advertisements, but also—and most troublingly—he also found an increase in negative advertising.

When no one is accountable, then attack ads seem to be the norm, and unfortunately, they work. They are also grossly unfair, and more often than not distorted, dishonest, and defamatory.  If anyone believes that more such negative advertising is good for American politics, then they are either stupid or in need of psychiatric assistance.

Policing Covert Corporate Political Spending: Calling America’s Prosecutors

There has been no shortage of reportage on what, in fact, the Republicans are doing.  Also well reported is the fact that they will have more money than the Democrats in 2012, if not indefinitely.  It is now obvious that Republicans have finally figured out how to use their fiscal advantage to game our democracy, so they are playing fast and loose with the rules, stretching them to their unfair advantage, and largely getting away with it.

Unfortunately, there have been only a few (most nominal and belated) efforts to make Republicans accountable, and to require that they play even by the rules they have managed to distort and change to their advantage.  For example, The New York Times reports that the Attorney General of New York has been taking a close look at potential abuse by the Chamber of Commerce SuperPAC’s borrowing from its 501(c)(3) to run negative ads in 2010, but that deed was done long ago.  And there are also reports that the IRS is looking at whether the growing bevy of 501(c)(4) organizations are, in fact, primarily promoting “social welfare,” but the reports indicate that it will take years to get the results of that investigation.

When the U.S. Supreme Court recently blew away Montana’s effort to salvage its prohibition on corporate contributions, a statute the state had had on its books for over 100 years with no question ever being raised about its constitutionality, I began thinking about what Montana might do to deal with this problem.  I am sure Montanans have been thinking about this, a well, for the state has a massive new oil find that I am sure corporate American is trying to get under its control.  It also seems that Montanans have an aggressive state Attorney General, who was unwilling to roll over when Citizens United was handed down in January 2010.

Montana has a very comprehensive bribery statute.  And while Citizens United holds that corporate contributions can be made for independent expenditures by corporations, and held that there are no limits on such political advocacy, none of these holdings preclude Montana, or any state, city, or federal prosecutor, from investigating and prosecuting political bribes and gratuities.  The line between a permissible political expenditure or contribution and an improper bribe or gratuity is almost invisible.  Montana’s Attorney General, and prosecutors everywhere, should take on the task of making certain that corporate anonymous contributions do not cross the line from proper to improper.

Given the U.S. Supreme Court’s decision to allow corporations—with their great wealth, and their interest only in what is good for them, whereas other donors are often interested in public welfare—it has never been more important for those with the power to do so to guard the essence of our democracy.  If American corporations know that they are being watched by prosecutors who have the power—via a grand jury subpoena—to truly and thoroughly examine what those corporations are doing anonymously, then that could assure all Americans that corporations are not corrupting our political system.

I plan to pass along a copy of this column to the national Association of Prosecuting Attorneys (APA), and to request that they consider taking on the task of watching this threat to our democracy.  Putting an end to the potential corrupting influence of Citizens United  by amending the Constitution is unlikely.  But it would also be unnecessary, if this political activity were to be actively policed.  A new vigilance on the part of all of America’s prosecutors, since corporate America operates in countless jurisdictions, strikes me as one potential way to protect America, and combat this gaming of our system.  I will report, in a future column, what I learn from the APA.

State and local prosecutors could make certain that corporate America is not improperly (read: criminally) influencing the democratic process.  Moreover, when a prosecutorial investigation takes notice of dishonest and false political advertising (which is the new norm for these political activities) that investigation could publicly reveal this fact, and identify the responsible parties, a step that would enable those who have been improperly maligned to take appropriate civil action, via a defamation suit or otherwise.

Posted in: Election Law, Politics