So it's as bad as we thought. When the Colbert Report first began highlighting the looming threat of Super PACs last year, the rest of the country was still obsessed with the president's birth certificate and the wording of Sarah Palin's latest tweets. We are paying attention now. We see in hindsight that it was Super PAC spending, and not the Tea Party "movement," behind the 2010 elections. We have watched this year's Republican election be hijacked by three delusional millionaires, and only one of them is a candidate.
Thanks to the efforts of Stephen Colbert and a few others, we have awareness of campaign spending abuse aplenty. Now we need a cure. As we watch this disaster election unfold, we crave assurance that steps are being taken right now to stop or curtail the Citizens United decision. We ought to know what options are out there, both for normal folks and for sympathetic government officials.
In Washington and out, activists and politicians have been fighting to correct these mistakes. Here is a short list of a few of the efforts that are already underway.
It makes sense that what started in the Supreme Court might also end there. The biggest legal challenge to the Citizens United decision is happening, of all places, in Montana. The Montana Supreme Court recently upheld a decision blocking Citizens United under the state's old anti-corruption law. The judges in the case agreed that Super PACs are a way for corporations to influence Montana elections anonymously. The case has been appealed to the Supreme Court, and now we wait for them to decide whether to take the case.
Campaign finance reform laws are older than Social Security. They came into existence over a hundred years ago, way back in Teddy Roosevelt's administration. For the first 97 of those years, the Supreme Court defended the constitutionality of campaign spending restrictions, again and again. McCain-Feingold, the last major piece of campaign finance reform legislation, was upheld by the Supreme Court in 2003.
You may remember 2003 as the year we sent troops to Iraq, placing it squarely in the first administration of the second Bush, but in that climate campaign finance laws still had bipartisan support. So what changed? What happened that would make the Supreme Court ignore a century of legal precedent? That can be answered in one word: Alito. With his appointment, a generation-long drive to turn the court decisively conservative was fulfilled. The extremity of today's Supreme Court is so mind-boggling that it almost operates unseen. We are stuck with a court that sides with corporations over individual citizens, not just when it comes to campaign spending, but for regulations, taxes, and workplace discrimination.
Recently retired Justice John Paul Stevens went on Colbert in January to discuss his dissenting opinion in Citizens United. Stevens was appointed by President Ford, as a conservative, but once on the bench he sided with liberal justices on many crucial issues. We are unlikely to see that shift to the middle repeated by Alito, Scalia, Roberts, or Thomas. Until they are replaced, Scotus will continue to be driven by ideology and old grudges.
Obama has spoken out forcefully against Citizens United, but his administration has done little to actively overturn it.
Advocacy group Democracy 21 has been gathering evidence of coordination between Super PACs and campaigns, then reporting them to the Justice Department through a series of letters to Attorney General Eric Holder. The Justice Department hasn't responded, and there's no indication that it intends to investigate. Journalist Elizabeth Drew commented that the Justice Department might be reluctant to bring charges against Super PACs, because the president himself stands to benefit from them. That may sound cynical, but it's not as frightening as another plausible scenario: if the Justice Department prosecutes coordination, it tempts the Supreme Court to rule that coordination is also just another form of free speech.
Public opinion has gotten nowhere with Congress on this. Reform was a bipartisan issue as recently as 2004, but today opinions cleave straight down party lines. Recent attempts to reform campaign finance have been dead in the water. In 2010, Democrats proposed the "Disclose Act." It would not have placed any limits on donations; it simply tried to close loopholes allowing donations to go unreported. Yet even this weak band-aid of an act was killed by Senate filibuster. (Worth noting, maverick campaign finance reformer John McCain was among the No votes.)
This year a new version of the Disclose Act has appeared. Nancy Pelosi broke her pledge never to appear on the Colbert Report in February to promote the new bill, without actually explaining what it does ("I just want them to disclose!"). The new, "improved" Disclose has been tailored to address Super PAC reality.
But let's be honest, just thinking about the Disclose Act is depressing, because even though it doesn't place limits on donations and spending, even though it specifically carved out an exemption for the NRA, it doesn't stand a chance of passing.
The distaste for unlimited campaign spending is shared by more than just late-night fans, and in some contests the pressure has worked. Recently Massachusetts Senator Scott Brown and challenger and consumer advocate Elizabeth Warren have declared a cease-fire on outside advertising.
That sure sounds nice. It is at least an indication that sane candidates realize what a poison Citizens United is. At the same time, it does raise one of those chicken-and-egg questions: how can a candidate stop Super PAC spending if the campaign and the outside group are not allowed to coordinate? For Brown and Warren, the pact took the format of one of those cute mayoral sporting bets: if a Super PAC runs an ad, the candidate it supports donates to a charity chosen by the opponent. If that enforcement mechanism sounds a little weak to you, you won't be surprised to learn that Karl Rove has pledged to continue running ads against Warren.
You can't get in trouble for coordinating if the word "coordinate" has no meaning, and almost all the other candidates have been pushing the boundary of the line between campaign and cash cow.
At the same time as the Warren-Brown agreement, President Obama "signaled" to Democrats that he would approve of donations to a Super PAC — Priorities USA — that supports him; he has even directed Cabinet secretaries to attend their fundraisers. (Colbert dressed Obama up as a lord Sith and welcomed the President to the dark side.)
Then there's Romney. He has done away with intermediaries and attended Super PAC fundraisers and private dinners himself. Recently the Times reported how Romney's campaign and his Super PAC share resources, consultants, and (the article concludes from expense filings) have even secretly held fundraisers in the same locations and at the same times (though we should emphasize, just like the Romney campaign spokeswoman did, that doesn't make it a joint fundraiser). Then there's this: "Last summer, discussing a large donation to the super PAC by one of his former business partners, Mr. Romney characterized it as a donation to himself."
Campaigns know that the Federal Election Commission is unable and the Justice Department is uninterested in enforcing rules about coordinated expenditures. Obama decided to fight Super PACs with Super PACs because he didn't think it would be fair for Democrats to "unilaterally disarm." Until the system is reformed, noble attempts like Brown and Warren's are like what Dick Cheney said about energy conservation: a sign of personal virtue.
A succinct demonstration of the high absurdity of Super PAC and campaign separation is Colbert's renouncement of his Super PAC to Jon Stewart, while Colbert was considering a run for President of South Carolina (the briefly renamed Definitely Not Coordinating with Stephen Colbert Super PAC), and his later reclamation thereof. What started out as a joke about Colbert's popularity in South Carolina polls evolved into an extended saga educating viewers on the tortuous logic campaigns use to present a face of non-coordination.
Organized resistance to Citizens United does have a presence in Washington, with groups like Democracy 21 and Trevor Potter's Campaign Legal Center doing what they can to highlight abuses and convince lawmakers about the need for campaign finance reform.
Unfortunately, these advocacy groups are having better luck in raising awareness than in actually changing anything. The influence these reform lobbies and public policy centers have on politicians pales in comparison with rival groups that, you know, give campaigns a ton of money. On the other hand, these groups make journalists' jobs much easier, and their statements have provided reliable content for (non-Colbert driven) Citizens United coverage.
Of course, the Colbert Super PAC deserves credit as the most influential of the watchdog groups. Since the initial campaign last summer, the Colbert Report has been doing much more than just releasing funny commercials. His segments have continued to uncover the hidden ways that Citizens United has turned out even worse than we thought. Last September, for example, Colbert and Trevor Potter explained how Super PACs like Karl Rove's have created shell corporations — called 501(c)(4)s — that permit anonymous donations.
One watchdog group, the Sunlight Foundation, tracks the activities of these secret groups, what they call "dark money". Even Obama's Super PAC uses it, and Rove's secret 501(c)(4), Crossroads GPS, raised more money than his Super PAC itself. The only one not taking advantage of the loophole is Colbert, whose anonymous shell remains for now an empty shell.
That leaves us. Many Americans, not waiting for government officials or lobbyists to do something, have taken the battle to stop Citizens United upon themselves. As they should. If elections can now be bought, it's these Americans — the voters — who have the most to lose.
Journalists and watchdog groups (Colbert among them) have provided the cue. Building on this educational and investigative base, opponents of Citizens United have attacked the areas where they can have the greatest effect: highlighting campaign violations and exposing secret donors.
We could consider these activists their own Colbert Nation, or what you could call a Wikiality-based community. The Super PACs' 2011 filings were released just over a month ago, and the shock of their contents was how fully it confirmed our fears: half of all the money Super PACs raised came from 22 billionaires. (Plus some fun facts: Americans for a Better Tomorrow, Tomorrow outraised Rick Santorum's Super PAC last year. Colbert is also the only Super PAC where all donations but one were $200 or less.)
The billionaires' donations were legal, but although we cannot stop them, we can ensure that the people making these donations get full public attention. Yet again, Colbert was a leader in this regard, dedicating a segment to "honor these 22 patriots, who have given so much, and expect so much in return."
The billionaires named might not be embarrassed or dissuaded by a single mention, but if it is kept up the tactic can turn into real public pressure. The strangest thing about this list is the names of some of the "people": Eli Publishing Inc., Freedomworks, F8 LLC.
These names are interesting not just because they are clearly not people, but because they are names of things that don't exist. F8 and Eli Publishing, for beginners, are both registered to the same address in Utah. A Utah television station visited that address, and found they don't live there, and they have left no other traces on this green earth, except for that money.
This is where the viewer at home can help. Last month, Michael Luo of the Times began putting out an open call on the Caucus blog for help uncovering the identities of the many secret donors to Romney's Super PAC. A good number of them, including W Span LLC and Glenbrook LLC, were revealed to be dummy corporations funneling money for former executives at Bain, Romney's old firm. Another donor, Paumanok Partners, was uncovered by accident, when a Times graphics editor tried typing its name in the web address bar, which allowed them to track down its registration details.
The growing number of phony names and fake addresses on these filings are starting to make it feel like the norm, not the exception. Already, the instances mentioned here outnumber the confirmed instances of that old Republican bugbear, voter fraud.
This tactic doesn't just pin its hopes on the Wikileaks-style philosophy that full disclosure cures abuse. The entire legal basis of the Citizens United decision comes down to an observation in the decision written by Justice Kennedy, that donations of corporate money does not “give rise to corruption or the appearance of corruption.” That might sound naïve to us, but to paraphrase Upton Sinclair, it is difficult to get a government official to understand something when his nonsalaried perks and post-retirement lobbying sinecure depend on his not understanding it. It is common sense to the majority of Americans that unlimited campaign donations are intrinsically corrupt. We are well on our way to proving it.
There is reason enough to be hopeful about that. When Colbert began his Citizens United crusade last spring, in a harsh political climate, few could have predicted what the following year would bring: legalized gay marriage in New York, the abandonment of the absurdly onerous Stop Online Piracy Act, a popular uprising in support of Planned Parenthood, an apology from Rush Limbaugh for chrissakes, and crucially, a turn in the national conversation toward inequality and the disproportionate power of the richest. To the surprise of quite a lot of us, we've entered a period where good things seem possible again.
There is one other possible outcome. Despite his overwhelming financial advantage (estimated at 30 to 1 at one point), Mitt Romney still has not clinched his party's nomination. Come November, what the Super PACs might have shown us is that money can't buy elections after all, and the power of very, very rich isn't so impervious as we thought. Perhaps, even unlimited money has its limits.
Stephen Hoban is a writer living in New York.