Our Downward Spiral Since Citizens United

The corrosive influence of unlimited money in politics continues to grow.

WASHINGTON, DC - MAY 20: Newly redesigned $100 notes lay in stacks at the Bureau of Engraving and Printing on May 20, 2013 in Washington, DC. The one hundred dollar bills will be released this fall and has new security features, such as a duplicating portrait of Benjamin Franklin and microprinting added to make the bill more difficult to counterfeit. (Photo by Mark Wilson/Getty Images)
National Journal
Oct. 15, 2014, 4:01 p.m.

Every once in a while, Dav­id Brooks writes a column in The New York Times that makes one just cringe. That was the case with his “Don’t Worry, Be Happy” treat­ment last week of the im­pact of Cit­izens United on our polit­ics. By de­fin­ing the im­pact nar­rowly—does either party gain from the Su­preme Court rul­ing and the new Wild West of cam­paign fin­an­cing?—and by cherry-pick­ing the re­search on cam­paign fin­ance, Brooks comes up with a be­nign con­clu­sion: Cit­izens United will ac­tu­ally re­duce the in­flu­ence of money in elec­tions, and, I quote, “The up­shot is that we should all re­lax about cam­paign spend­ing.”

Without men­tion­ing his good friend’s name, E.J. Di­onne des­troyed that case in his own Wash­ing­ton Post column. But a broad­er cri­tique is ne­ces­sary. First, Cit­izens United—and its pro­geny, Speech­Now.org and Mc­Cutcheon—are not really about wheth­er Re­pub­lic­ans get a leg up on elec­tion out­comes. They are about a new re­gime of cam­paign spend­ing that dra­mat­ic­ally en­hance cor­rup­tion in polit­ics and gov­ern­ment by for­cing law­makers to spend more and more of their pre­cious time mak­ing fun­drais­ing calls, rais­ing money for their own cam­paigns and their parties, and get­ting in­sur­ance against a last-minute blitz of “in­de­pend­ent” spend­ing that trashes them when they have no time to raise money to de­fend them­selves. It also gives ad­ded trac­tion to ex­treme groups threat­en­ing law­makers with primary dev­ast­a­tion un­less they toe the ideo­lo­gic­al line.

I have told this story be­fore, but it bears re­peat­ing. Many le­gis­lat­ors have had an ex­per­i­ence something like this: A lob­by­ist vis­its and says, “I am work­ing with Amer­ic­ans for a Bet­ter Amer­ica. They have more money than God. $10 mil­lion in the last two weeks of a cam­paign to trash some­body’s repu­ta­tion would be noth­ing to them. They really, really want this amend­ment. I don’t know what they would do if someone op­posed them, but “¦” The res­ult will be more amend­ments, or more amend­ments blocked, without the money be­ing spent and without any­one even know­ing what is go­ing on. And every time the money is spent, and someone loses, the les­son will not be lost on those still in of­fice.

At the same time, the des­per­a­tion to raise money means law­makers pan­der­ing to big donors or shak­ing them down—trad­ing ac­cess for fa­vors, or threat­en­ing re­tri­bu­tion. And it means more vi­cious ads, done by an­onym­ous groups, which only en­hance the cor­ros­ive cyn­icism voters have to­ward all politi­cians. And it means more sham in­de­pend­ence and block­age of dis­clos­ure, without any en­force­ment of ex­ist­ing laws by the out­rageously law­less Fed­er­al Elec­tion Com­mis­sion, led by Car­oline Hunter and Lee Good­man. And we should re­lax?

But that is not the worst of the new world of cam­paign fin­ance post-Cit­izens United. The worst comes with ju­di­cial elec­tions—and that worst could be worsened by a pending Su­preme Court case that may al­low sit­ting judges act­ively to so­li­cit cam­paign funds for their own elec­tions.

Here is what we know. Loads of money—mostly con­ser­vat­ive—went in­to ju­di­cial re­ten­tion elec­tions in the last cycle in Flor­ida, fol­low­ing a sim­il­ar ex­per­i­ence in 2010 in Iowa and Illinois. We saw sim­il­ar ef­forts on a smal­ler scale in oth­er states, in­clud­ing Wis­con­sin and Michigan. All had a ton of at­tack ads. Those ef­forts have ex­ploded in the 2014 elec­tions. In North Car­o­lina, where re­peal of the state’s Ju­di­cial Cam­paign Re­form Act by the right-wing Le­gis­lature opened the door to a fur­ther ex­plo­sion of cam­paign spend­ing, and where the GOP sees re­tain­ing a ma­jor­ity on the court (os­tens­ibly, but ris­ibly, non­par­tis­an) as a key to their con­tin­ued he­ge­mony in polit­ics, the Re­pub­lic­an State Lead­er­ship Com­mit­tee spent $900,000 on an un­suc­cess­ful primary cam­paign to un­seat Justice Robin Hud­son, and will tar­get Court of Ap­peals Judge Sam Ervin IV in his second at­tempt to move to the Su­preme Court (the first one, in 2012, cost $4.5 mil­lion or more). Much of the spend­ing will come in the next month, and will total many mil­lions, most of it from out­side groups. The Re­pub­lic­an State Lead­er­ship Com­mit­tee is tar­get­ing judges in Ohio, Michigan, Montana, North Car­o­lina, New Mex­ico, and Texas.

In Ten­ness­ee, Re­pub­lic­an Lt. Gov. Ron Ram­sey, work­ing hand in glove with the RSLC, led a con­ser­vat­ive ef­fort to un­seat three justices up for re­ten­tion. If they had lost, Gary Wade, Cor­ne­lia Clark, and Shar­on Lee—all en­dorsed by a bi­par­tis­an eval­u­ation pan­el—would be re­placed by Re­pub­lic­an Gov. Bill Haslam. Once again, mil­lions were spent to de­feat them. Thanks to a counter-cam­paign, led by law­yers who prac­tice in front of them, all three eked out bare vic­tor­ies in the Au­gust re­ten­tion elec­tions. Lew Con­ner, a Re­pub­lic­an who served as a judge ap­poin­ted by then-Gov. Lamar Al­ex­an­der, has said about Ram­sey, “What he’s do­ing, I think, is just ter­rible. It’s an at­tack on the in­de­pend­ence of the ju­di­cial sys­tem.”

It is true that the politi­ciz­a­tion and in­creas­ing par­tis­an­ship of the courts has par­alleled, or fol­lowed, the tri­bal­ism in the polit­ic­al pro­cess. And it is true that a sharp­er tone in ju­di­cial elec­tions pre­ceded Cit­izens United. But the con­cer­ted ef­forts by act­iv­ist James Bopp to go state by state and re­move all re­stric­tions on how ju­di­cial elec­tions are run—mak­ing them just like polit­ic­al cam­paigns—com­bined with the ef­fect­ive elim­in­a­tion of bound­ar­ies on fund­ing and the block­age of dis­clos­ure, have dra­mat­ic­ally changed ju­di­cial elec­tions. Vi­cious at­tacks on the in­teg­rity of judges them­selves un­der­mine con­fid­ence in the ju­di­ciary, but that is not the ma­jor prob­lem.

Here is the real­ity: If judges fear mul­ti­mil­lion-dol­lar cam­paigns against them, they will have to raise mil­lions them­selves, or quietly en­gin­eer cam­paigns by oth­ers to do so. Who will con­trib­ute, or lead those ef­forts? Of course, those who prac­tice in front of the judges will, cre­at­ing an un­healthy dy­nam­ic of grat­it­ude and de­pend­ency. Worse, ima­gine what hap­pens when judges are de­cid­ing cases in which the stakes are high, and well-heeled in­di­vidu­als or cor­por­a­tions will be helped or dam­aged by the rul­ings. The judges know that an ad­verse de­cision now will trig­ger a mul­ti­mil­lion-dol­lar cam­paign against them the next time, both for re­tri­bu­tion and to re­place them with more friendly judges. Will that af­fect some rul­ings? Of course.

I agree with re­tired Su­preme Court Justice Sandra Day O’Con­nor that ju­di­cial elec­tions in gen­er­al are an ab­om­in­a­tion. They are no way to se­lect im­par­tial and high-qual­ity jur­ists. But ju­di­cial elec­tions in the age of Cit­izens United make it so much worse. This will ul­ti­mately un­der­mine the whole idea of an in­de­pend­ent ju­di­ciary, which is the single most sig­ni­fic­ant bed­rock of a func­tion­ing demo­crat­ic polit­ic­al sys­tem. So, Dav­id, I do not re­lax about cam­paign spend­ing. And neither should you.

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