Outside groups are outspending candidates by more than 2-to-1, and candidates for the presidency and other office are beginning to see one of the more pernicious side effects of Citizens United — that the candidates are increasingly being crowded out of the prime television ad spots they want and need to get their messages across. Super PACs and other outside groups are so awash in money that they can pay stations premiums for the top spots on shows such as “Glee” or “Modern Family,” leaving the candidates with sloppy seconds.
By giving corporations free rein to meddle in politics without any accountability required, just like in the robber baron days, and by defining money as speech, the court dealt a body blow to American democracy. Candidates no longer can focus simply on raising money for their campaigns against other candidates. Because corporations have almost unlimited sums they can put in with no notice, candidates have to raise protection money in advance just in case such a campaign is waged against them.
And in many cases, as I have written before, they will pay for protection by quietly giving companies or other interests what they want legislatively to avoid a multimillion-dollar slime campaign against them. Supreme Court Justice Anthony Kennedy, who wrote the majority opinion in Citizens United, said there could be no corruption in independent spending. What planet does he live on?
As for money being speech, imagine if your next-door neighbor puts up 50-foot speakers in his yard and blares music at ear-splitting levels and tells you that this is his speech; he is happy to let you listen to your own music on your iPod. The fact that you cannot hear your own music, much less share it with anyone else because you are drowned out is not material to Kennedy or Chief Justice John Roberts.
To be fair, some of these excesses are because of a feckless FEC’s willingness to defy the court’s clear intent on the independence of these groups and on disclosure. But the big problem came with the court in what Sen. John McCain (R-Ariz.) recently called one of the worst decisions he had ever seen (and he has seen a lot of them).
Roger Taney was the fifth chief justice of the Supreme Court, a distinguished man who also served as attorney general and secretary of the Treasury. But he, and the Taney Court, will be remembered only for the Dred Scott decision in 1857 that defined African-Americans as inferior and said they could not be considered citizens of the United States. Citizens United is not like Dred Scott, of course.
But Roberts, a distinguished man, along with Kennedy and the Roberts Court may well be remembered in history for one decision that took American politics back to the Gilded Age, corrupting elections and the policy process along the way.
The end of January marks the 36th anniversary of the Buckley v. Valeo decision, the capstone of efforts to curb the rampant legalized corruption that culminated in Watergate. To those who remember the pre-Watergate era, brace yourselves — it is on the way back.
Norman Ornstein is a resident scholar at the American Enterprise Institute.