PD Editorial: The case for Citizens United advisory vote

Proposition 49 on the Nov. 4 ballot asks voters whether Congress should overturn the U.S. Supreme Court decision that freed corporations and labor unions to spend on congressional and presidential campaigns.

It’s a non-binding advisory measure, addressing only one aspect of the money-talks culture of political campaigns, and it may serve the cynical goal its critics claim: getting Democratic voters to the polls in a low-turnout election.

Yet Proposition 49 also serves a larger purpose - keeping a spotlight focused on the inexcusable failure of Congress and the Federal Elections Commission to address the cascade of money seeking to influence elections and, by extension, the U.S. government.

The nexus between money and power is nothing new.

One of the few exceptions was a century-long prohibition on corporate and union spending in federal elections. That ended in 2010 with Citizens United, a case in which the U.S. Supreme Court ruled that campaign spending by unions and corporations is protected by the Constitution’s free speech guarantees.

The ruling created new sources for big-money super PACs that are allowed to accept contributions of any size. Of even greater concern to us, the ruling resulted in more money flowing into shadowy “social welfare” and “issue advocacy” groups that exploit a loophole in the tax code to keep their donors’ names secret.

In a display of naiveté (or worse), the Supreme Court majority in Citizens United asserted that disclosure rules would provide a bulwark against campaigns funded by anonymous donors.

“With the advent of the Internet,” Justice Anthony Kennedy wrote for the court, “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”

There’s one big problem with Kennedy’s analysis. Neither federal law nor FEC regulations requires prompt disclosure or, in the case of so-called 527 groups, any disclosure whatsoever.

In four years since the decision, neither Congress nor the FEC has acted to tighten the rules. Meanwhile, more and more political money is flowing into anonymous campaigns. Spending by 527 groups increased from $480 million in 2007-08, the last election cycle before Citizens United, to $535 million in 2011-12, according to the Center for Responsive Politics.

As the 2007-08 figures suggest, undoing Citizens United won’t end the practice of stealth campaigning. Unlimited spending by individuals is allowed by Buckley v. Valeo, a 1975 ruling by the high court, and much of that money also flows into 527 groups.

Money will always find its way into politics.

In our view, transparency is the best antidote, meaning prompt and complete disclosure of all contributions and expenditures by any campaign or committee trying to influence elections or public policymaking.

We have no illusions that an advisory vote in California will prompt immediate action by Congress or the FEC, but it will serve to keep the debate alive without the risks involved in a separate effort to address Citizens United by calling a constitutional convention.

Despite the assurances of supporters, we’re not convinced that a constitutional convention can be limited to a single topic. Thirty years ago, when conservatives tried to call a convention to write a balanced-budget amendment, many liberals gave the same warning. They should take it to heart now and settle for an advisory vote that would create more pressure for Congress and the FEC to respond to Citizens United.