Memo: Super PACs and Montana vs. the Supreme Court

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“I’m against very wealthy people attempting to or influencing elections, but as long as it’s doable I’m going to do it.” – Sheldon Adelson

To: Editorial Writers
From: David Donnelly, Executive Director, Public Campaign Action Fund
Adam Smith, Communications Director, Public Campaign Action Fund
Date: February 22, 2012
RE: Super PACs and Montana vs. the Supreme Court

The financing of the Republican presidential nomination fight is increasingly in the hands of a small number of wealthy Americans. That’s the findings in from a trio of news stories from the New York Times, Washington Post, and USA Today this morning.

New York Times: “About two dozen individuals, couples or corporations have given $1 million or more to Republican super PACs this year, an exclusive club empowered by the Supreme Court’s Citizens United decision and other rulings…”

Washington Post: “Although many of these mega-donors have long participated in politics, none were able to wield the kind of influence now possible under loosened campaign finance regulations, which allow super PACs and other outside groups to spend unlimited amounts on political races.”

USA Today: “Five wealthy people…have donated nearly $1 of every $4 flowing to the super PACs raising unlimited money in this year's presidential race, a USA TODAY analysis shows.”

What we see is a result of two major factors.

First, the Supreme Court’s deregulatory zeal, cloaked in First Amendment protections, has done to our elections what Wall Street interests and previous congresses did to our financial and housing markets. This Wild West of politics was fueled by several court decisions, including the notorious Citizens United decision and the less-well known SpeechNow case that accelerated the creation of Super PACs.

Second, despite the rhetoric of the Republican presidential candidates, government isn’t the problem; it’s the prize. The current crop of big donors representing hedge funds, casinos, and other big interests understand this. They are pouring their money into the presidential race to further a government that works primarily for them, not for everyday Americans.

Some pundits are saying that super PACs have made our elections fairer—giving candidates like Rick Santorum and Newt Gingrich the ability to compete against the establishment. That’s only true, of course, if you have a millionaire donor at your disposal. We need more Main Street Americans in politics—not more billionaires.

Presidential candidates should support and push Congress to update the presidential public financing system and pass legislation like the Fair Elections Now Act, which would allow House and Senate candidates to run a competitive race for office by collecting small contributions from people back home.

Montana Goes to Court

Last week, the Supreme Court issued a stay on a Montana State Supreme Court decision regarding corporate money in politics. At issue was a 1912 state law banning direct corporate expenditures in state races called the Corrupt Practices Act. A corporation called American Tradition Partnerships sued the state, but the Montana Supreme Court upheld the law. The state’s Attorney General, Steve Bullock, said he’d enforce the statute even though it was an apparent conflict with the Citizens United decision.

On Friday, the Supreme Court said that the law could not be enforced and agreed to review briefings from both sides in the case. In an unusual move, two justices concurred with the stay but issued a statement asking the court to take up the case in order to revisit Citizens United.

As noted election lawyer Rick Hasen wrote in Slate, Justice Ruth Bader Ginsburg “like many Americans, appears concerned with the rise of super PACs and the disturbing role money is playing in the 2012 campaign season since the Supreme Court’s controversial decision in Citizens United v. FEC.”

Arguments could be scheduled for late Spring or in the Court’s Fall term.

The additional backdrop, of course, is political. Montanans are already bracing for up to $30 million in political spending by candidates and outside groups in one of the years marquee Senate contests pitting incumbent Senator Jon Tester (D) against incumbent Representative Denny Rehberg (R). The Attorney General, a Democrat, is running for Governor, and will likely become a target for his leadership on money-in-politics. Lastly, a ballot measure may appear on the November ballot asking voters to instruct Congress to adopt a constitutional amendment to address out of control political money.

Consider one increasingly likely scenario: in the midst of a nasty, negative campaign season featuring one of the most expensive Senate races in the country, voters could send a message to Washington they want an end to it, just as the Supreme Court, itself responsible for the mess, takes up a case to do away with, or restore, Montana’s century old Corrupt Practices Act.