Opinion: Citizens United 1 Year Later -- Unleash the Corruption

Last month it was reported that incoming Sen. Ron Johnson, R-Wis., "paid a personal visit" to Tom Donohue, the president of the U.S. Chamber of Commerce, "to thank him for the chamber's unsolicited support of his candidacy." Apparently the senator did not get the memo that all genuflecting before campaign funders should be conducted behind closed doors.

Johnson's visit comes courtesy of the U.S. Supreme Court decision one year ago today in Citizens United v. FEC, which opened the floodgates by allowing for the first time the vast reservoirs of corporate and union treasury funds to swamp federal elections. In a jaw-dropping ruling that ignored precedent, a narrow majority of justices gave a legal wink and nod to those members of Congress who have insisted that money spent to elect them does not buy influence.

Of course, fictions are part of the lifeblood of politics. But sometimes political fictions become law.

Take electioneering ads that masquerade as "issue discussion," with a tag line like, "Call Congressman Doe and tell him to stop beating his wife."

Or take the federal definition of what constitutes "coordination" between candidates and outside actors. The law deems an expenditure made in "coordination" with a candidate to be the equivalent of a contribution, subject to limits and other rules. But the Federal Election Commission has so watered down the law as to make it largely ineffective.

The concept of "coordination" stems from a deeper flaw in campaign finance law dating back to 1976's Buckley v. Valeo. The myth at the core of that Supreme Court decision is that while contributions to candidates and parties are potentially corrupting and therefore can be limited, independent expenditures do not have the same potential, and as a direct exercise of free-speech rights, cannot be limited.

The logic of this aspect of the case and current law is totally untethered from reality. Here's why:

In the Buckley case, the court concluded that campaign contribution limits were justified by the government's interest in preventing or mitigating corruption, or the appearance of corruption, in our democratic system. But it said that spending one's own money independent of a campaign couldn't be limited because that "does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions."

Since an independent expenditure is not controlled by the candidate, the court reasoned, such spending is not likely to create even the appearance of corruption.

How completely stupid!

While a donor who gave the maximum contributions of about $5,000 will get his call returned, imagine what spending $2 million on ads hammering an opponent will buy? It is simply human nature that the candidate is going to feel an understandable sense of gratitude to the big donor.

As a result, Justice Anthony Kennedy's opinion in the Citizens United case -- which extended this independent expenditure exemption to corporations and labor unions -- is based on the complete fiction that an independent expenditure is necessarily less corrupting than a direct contribution. The magnitude of corporate treasury funds is a game changer.

Kennedy's profound disconnect with the real world was underscored by his misinformed belief that current disclosure laws would provide an adequate brake on possible resulting corruption. But corporations can now evade disclosure of their political spending by simply laundering their money through trade associations and 501(c)(4) groups, thus avoiding public exposure and possible backlash.

As long as the fiction of independent expenditures persists and the illogic of Citizens United remains unchanged, our country is in for a long and dubious period equivalent to the robber-baron politics of the late 19th century.

Those who say politicians in Washington are not responsive to those who got them elected have it wrong.

Next time you see a TV ad paid for by some innocuous-sounding group, or receive a mailer or phone call from someone who is not the candidate, just remember who the winning candidate will be visiting when he or she arrives back in Washington.

After all, he who pays the piper calls the tune.

Meredith McGehee is policy director of the Campaign Legal Center in Washington, D.C. She also heads up McGehee Strategies, a public interest consulting business.