Citizens United is a revolving door problem

The U.S. Constitution. (photo credit: Kim Davies/Flickr)

At a campaign appearance Tuesday, Democratic frontrunner Hillary Clinton called for cracking down on “unaccountable” money in the political system, even if it required amending the Constitution. Mrs. Clinton’s own record in that regard is not spotless. For example, Norman Hsu, a bundler for her Senate and presidential campaigns, raised $45,000 for her from a California family whose patriarch, a mailman, earned $49,000 a year, and whose matriarch was a homemaker. And Sant Chatwal, a hotel magnate based in New York City, made more than $180,000 in illegal donations, some to Clinton’s 2008 presidential run, then pressured a witness to lie to federal investigators. But still, it’s always useful for politicians to raise the problem of runaway money in politics.

Before considering the extreme step of an amendment — which might also weaken press and speech freedoms guaranteed under the First Amendment — perhaps there is another approach, one that might limit the ability of well-heeled special interests to give to political organizations that act as surrogates for politicians. We could regulate the middlemen and women who make outside spending an inside affair. To do so, we’d need more transparency from super PACs and dark money groups, especially the names of the individuals who actually run them.

The problem with big money in elections is not necessarily the money. Big donors will always try to spend big in elections, and will usually succeed. In 2004, two years after the McCain-Feingold law barred giving unlimited soft money donations to political parties, political party operatives like Harold Ickes, a Democrat, and Benjamin Ginsberg, a Republican, found perches, respectively, with the Media Fund and the Swift Boat Vets for Truth, which soon set about raising money in enormous sums from many of the soft money donors that McCain-Feingold attempted to exclude from the system. And in 2008, two years before the 2010 decision in Citizens United v. Federal Election Commission that opened the door to unlimited spending by super PACs and nonprofits, Sheldon Adelson gave millions to a group called Freedom’s Watch, which employed Carl Forti and Tony Feather, both veterans of Republican party committees and campaigns.

Those running super PACs and dark money groups, and the connections they have, are what make the donors give. If I were to start a super PAC tomorrow, I’m not even certain I could persuade my mom to contribute, let alone a billionaire like Tom Steyer. But if Karl Rove starts one, the donations will flow (albeit not from Steyer). Rove has the ear of people in power. And while it’s true that lawmakers court big donors and even encourage them to write huge checks to super PACs, as indicted New Jersey Sen. Robert Menendez, D, is accused of doing with Salomon Melgen, they do so because they’re confident the recipients of that money know what to do with it when the get it — exactly what the party needs. Melgen and his company contributed $700,000 to the Senate Majority PAC, which is run by Susan McCue, a former aide to Sen. Harry Reid, D-Nev.

Before we go the constitutional amendment route, why not try instead to rein in the likes of McCue, Forte, Ginsberg and Ickes (the latter is still president of Priorities USA Action, the big money super PAC that will support Clinton’s 2016 candidacy). It’s not hard to envision a law that attempts to do just that, perhaps by making the presence of anyone who has done prior paid work for a political campaign or political party at the helm of an “independent” outside group sufficient grounds to assume coordination with a campaign. If a super PAC or dark money group run by a political insider spends millions running ads to help a candidate, that candidate’s campaign will be fined an amount twice as great as the cost of the independent expenditure from which it benefited. The same standard could be applied to dark money nonprofits as well. Any group that plays in politics has to disclose its management, directors and staff, and if the likes of Rove or Ickes turn up among their officers, the same fine applies to the campaigns that benefit from their spending.

Outside groups that are truly outside, formed by like-minded Americans who want to see Washington change, would be unaffected. The rules would only impact political insiders who make sure that big money turns into inside influence. The rest of us would remain free to enjoy our First Amendment rights.