Bopp doesn’t argue that the government should never demand disclosure. His point is more nuanced. He sees some cost—some loss of free speech, some constraint on a citizen’s freedom of political action—whenever the government steps into the picture. That cost simply isn’t justified, he says, when it comes out of the hide of groups pushing specific positions, which is what the mysterious nonprofits, like the old soft-money organizations, are supposed to do. “That’s the currency of democracy—talking about issues,” he told me over our sushi lunch.
I advanced the argument that voters should know the interests of anyone advocating a political position, because otherwise they might be deceived. But Bopp thinks that it’s up to the listeners to choose whether to pay attention to anonymous speech, and that the government, or the reformers, have no business deciding what anyone ought to know. “Now, you’re saying that, well, the reformers decided that the listener, even though they’re prepared to listen to anonymous speech, should want to know, because otherwise they might be misled,” he said, the rasp returning to his voice. “Well, who are the goddamn reformers to say this?! Who are they to decide this for Joe Blow out here?”
But isn’t the distinction between groups advocating candidates and those advocating positions fairly blurry? The second group is also seeking to affect the election, isn’t it? “They’re influencing the vote?” he replied. “So what? So are you.” But at least I was putting my name on any story I might write.
“Oh man, there’s all sorts of things you don’t disclose about yourself that people might find relevant when you write a political piece,” Bopp replied. “Don’t you think the government ought to try to figure out what that is, and make you do that?”
Right. About me. Well, it so happens that my brother, Michael, is a senator from Colorado. In the inaugural cycle for super pacs, in 2010, Michael was the top target, and conservative super pacs outspent liberal ones in his race that year nearly 3-to-1. More “outside” money, including more money from undisclosed sources, was spent on his race than on any other race in the country—upwards of $30 million. I had the peculiar experience of sitting with him, in his home in Denver, late at night, late in the campaign, watching commercial after commercial during the 11 o’clock news attacking him. His image was distorted, the voice-overs were ominous, and all in all, the ads made him seem like a devil. In between the ads attacking my brother, I saw ads doing the same thing to his opponent and to candidates in other races (one particularly preposterous advertisement attacked a congressman for supporting “Viagra for rapists”). To me, all this advertising seemed less like the currency of democracy than like a grotesquely stupid exercise to enrich political consultants and local television stations, and to drive voters away from polls.
So in writing this story, am I acting as part of the incumbent-protection racket? It seems like a fair question—but one that might get asked only if my name is on the story; once the reader has that information, the rest is just a Google search away, with no government intervention necessary.
Fictional political comedies—like this summer’s The Campaign—are seldom funny; the targets of their too-gentle satire are usually well ahead in the race to the bottom. This is the genius of Comedy Central’s Jon Stewart and Stephen Colbert: they have updated Michael Kinsley’s maxim (often applied to campaign finance) that the real scandal is what’s legal, by demonstrating that the real joke is what’s real. For more than a year now, Trevor Potter has served as Colbert’s lawyer while the comedian first weighed a presidential bid and then turned to meddling in others’ campaigns. Even after Potter started the gig, it took him a while to fully appreciate the joke: When lawyers for Viacom, which owns Comedy Central, raised concerns about whether, as a corporation, it might run afoul of certain campaign-finance rules if Colbert promoted his PAC on the air, Potter, like a good Washington lawyer, told Colbert over the phone that he could deal behind the scenes with Viacom’s election lawyer. “Don’t do that,” Colbert told him. The whole point, he explained, was to work through the legal questions on television.
The result has been a Peabody Award–winning series of segments chronicling Colbert’s efforts to negotiate the new landscape of political money. In one segment, a despondent Colbert made a show of shredding the paperwork for his PAC after Viacom objected that it could get in trouble for making a contribution in the form of airtime to a political-action committee. Potter—hands clasped across his stomach, handkerchief peeking from the breast pocket of his dark suit, slight smile subverting his heroic attempt to keep a straight face—explained to Colbert that he could put Viacom’s fears to rest simply by turning his conventional PAC into a super pac.
“What’s a super pac?,” Colbert, instantly alert, shot back. “Is that, like, a PAC that got bitten by a radioactive lobbyist? What—what’s a super pac?”
Potter explained how Citizens United had opened the door to a new kind of political-action committee that could raise limitless contributions from corporations and unions, as long as it spent the money independently of any campaign. All Colbert needed to do was attach a new cover letter to his miraculously reconstituted PAC forms, explaining his intention to raise “individual, corporate, and labor funds in unlimited amounts,” words Colbert read aloud with an almost pornographic relish.
“Oooh, I like the sound of that,” he said. “Unlimited’s got a certain poetry about it.” He dispatched Jay the Intern via pony to deliver the forms to Washington.
Elements of the Supreme Court’s theory in Citizens United seem to have little connection to politics as it is actually practiced. The majority reasoned that “by definition,” all of this new money could not be corrupting, since “an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” How could a politician be influenced by donors when he has no idea what they’re up to? In reality, of course, close allies and recent aides of the candidates run the super pacs. Romney has described a donor to one of his supportive super PACs as having given “to me,” and Rick Santorum referred to a group that backed him as “my super pac.” Karl Rove, who co-founded the super PAC American Crossroads and a nondisclosing 501(c)(4), Crossroads GPS, famously joined in Romney’s Park City donor retreat in June. But even if campaigns and “outside” operatives don’t coordinate their plans in back rooms, they keep each other informed by telegraphing their forthcoming moves through the press.
This confusion about “independence” is not entirely the Court’s fault. The Federal Election Commission could enforce more independence. It hasn’t. After a state Democratic Party stretched the known limits for coordinating with a campaign last year, American Crossroads, Rove’s super PAC, wrote the FEC seeking assurances that it could do the same thing on a grander scale without running afoul of the rules on “coordinated communication.” Here’s what American Crossroads had in mind as sufficiently uncoordinated: “These advertisements would be fully coordinated with incumbent Members of Congress facing reelection insofar as each Member would be consulted on the advertisement script and would then appear in the advertisement.” The commission deadlocked and never responded—which in the trade is taken, reasonably enough, as permission to proceed.
The segment in which Colbert created his super pac also underscored a profound legal—maybe even philosophical—shift wrought by Citizens United. In wiping out McCain-Feingold’s ban on contributions from corporations and unions to “independent expenditures,” the majority opinion, by Anthony Kennedy, resoundingly endorsed the idea that for purposes of politics, corporations are the same as people, with the same protection under the First Amendment. “The censorship we now confront is vast in its reach,” the majority thundered, before quoting from a partial dissent by Antonin Scalia in an earlier case brought by Bopp: “The Government has ‘muffle[d] the voices that best represent the most significant segments of the economy.’
”Over the decades, the Court has been less consistent on free-speech rights for corporations than the majority made it sound; conservative justices have been on both sides of the question. Indeed, the Court in Citizens United glided past some big questions, including, for example, whether a globe-spanning company, such as an oil company, has the same right as an American company to spend unlimited sums on American elections (as Justice John Paul Stevens acidly observed in his dissent: “The majority never uses a multinational business corporation in its hypotheticals”).
There is plenty of precedent for regulating certain types of speech by corporations: they aren’t allowed to lie to manipulate their stock prices, for example. The Court has drawn a distinction, however, between commercial and political speech. For the latter, the First Amendment protection is now all but absolute. But can a corporation engage in political speech that is not commercial? If its purpose for existing is to maximize shareholder value, shouldn’t all its political action be aimed at that objective?
Jim Bopp finds the question a bit silly. As a political matter, opening the door wide to corporate money has merely erased Democratic advantages in union ground support and media sympathy, in his view. And as a matter of law and common sense, he sees corporations as people, not reducible to a single interest. “They’re not a robot or an automaton,” he told me. “They’re real people making real decisions about what their group does.” The rights of the people who work for them transfer to the corporations, and the corporations, like the people who make them up, have interests beyond producing fat quarterly dividends. “I mean, these same corporations are giving to the NAACP,” he said. “Does anybody bitch about that? You know? That money isn’t going to shareholders.” Companies, he said, “just have a broader mandate than apparently the reformers want to give them in the political sphere. It is not only maximizing profits. It is advancing the economic interest of the corporation, in many different ways.”
To Potter, the focus even on a broader economic interest sets a corporation apart from a citizen. “I’m not an anticorporate guy,” he hastened to tell me. But citizens have a very different approach to politics. “All of those individuals have lots of calculations and lots of different interests at stake,” he said. “You look at something, and the range of your decisions is: Is this decision affected by my religion? By my moral values? By whether they’re going to raise or lower my taxes—whether I’m going to have more take-home pay? By whether the schooling is going to be better for my grandchildren? By whether I think war is morally wrong? By whether I think we should be safeguarding our future in the Far East? All these sorts of questions are at play when an individual makes a political decision of who to support.” But, he added, “that’s not what a corporation does. It’s not what it’s supposed to do. It is supposed to figure out how to get more out of the government, how to get a policy that benefits it at the expense of its competitors.”
The majority in Citizens United implicitly endorsed a narrow, corporate approach to politics. In its hymn to the new era of disclosure, the majority noted: “Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits.” That is, shareholders can punish a company if it makes the mistake of politicking in ways that don’t bring it profit. It is hard not to read that as: For a corporation, political speech is commercial speech—and that this Court’s majority regards that as a good thing. (After all, corporations are the voices that “best represent the most significant segments of the economy.”) If that’s so, why can Congress ban direct corporate contributions to federal candidates, as it has since 1907? Jim Bopp has cases in the works to challenge the constitutionality of that restriction.
History’s pendulum is now swinging back toward the days when political finances were only lightly regulated, when the system was more open to the cacophonous participation that Jim Bopp loves, and more vulnerable to the corruption and capture that Trevor Potter fears. Reformers who have been around a long time are betting that an old political cycle will repeat itself—that a permissive era will produce a scandal that will produce new rules. “Look to history,” says Fred Wertheimer of Democracy 21. “It’ll come from the American people. It’ll come from scandals. The history for me is the saving grace here, being old enough to have lived through this before.”
Maybe so. Maybe a big campaign-finance scandal will break the congressional logjam blocking the Disclose Act. And, short of achieving a new majority on the Supreme Court, there are levers that a reform-minded administration might pull. The FEC could write regulations ensuring true separation between the candidates’ campaigns and super pacs. (Obama may have pledged to change our politics, but he has shied away from seeking to replace the five FEC commissioners whose terms have expired, leaving the deadlocked incumbents in place.) Maybe, in the wake of a scandal, the IRS might move to tighten restrictions on the risible social-welfare nonprofits and the politicking trade associations. A scandal would surely put some political weight behind the innovative notions for public financing bubbling up from various cities and states. And having reversed itself once, the Supreme Court might do so again, though Bopp, from hard experience, calls that a “slender reed.” “Well, Roe v. Wade hasn’t been overturned, despite how many Republican presidents?” he said at one point, with some bitterness.
Yet the revolution in the ways we pay for politics has come about not just because of Citizens United and related cases. The legal changes have really just validated, and encouraged, a broader societal shift. As commercial speech has come to penetrate almost every aspect of our lives, it seems only natural that incessant fund-raising and once-staggering contributions would become the wallpaper of politics. Earlier this year, CBS announced that the network’s profits would rise by $180 million in 2012 thanks to the boom in political advertising. “Super pacs may be bad for America,” said Les Moonves, the company’s CEO, “but they’re good for CBS.” The advertising-research firm Borrell Associates has estimated that, from the local level on up, politicians and operatives will spend $9.8 billion on advertising this year. If money is speech, why shouldn’t political speech be both a source and form of commerce?
For these reasons, among others, there is joy in Boppworld. And the prospect of an end to all contribution limits is even more cause for hope. “The reason politicians spend so much time raising money,” Bopp explained to me, is “low contribution limits.” Fewer, bigger donations would allow politicians to spend more time with voters. And voters are the ones who would ultimately control politicians’ destinies, punishing the corrupt and rewarding the virtuous. I don’t doubt that Bopp believes this. His is an optimistic vision, fundamentally, about Americans and their politics. I hope, if we keep on our present course, that he turns out to be right.
But if we do keep living by the rules of Boppworld, there’s an alternative scenario, one that doesn’t involve either a second Watergate or renewed democratic vitality. America is a far different country today than it was during Watergate. There are many more billionaires, many more people for whom a potentially game-changing political contribution is merely a rounding error. When the Watergate scandal crested in 1974, the wealthiest 1 percent of Americans controlled about 9 percent of all income; in 2010, even after the crash, they held about a fifth of it. If you were part of the top 0.1 percent of the population in 1974, you made, on average, barely $1 million; in 2010, you made more than four times that.
During the same decades—and not coincidentally—American business has grown far more sophisticated at playing politics, in reaction to the expansion of the government’s regulatory role under Johnson and then Nixon. In 1971, the future Supreme Court Justice Lewis Powell, then a corporate lawyer, wrote a memo to the Chamber of Commerce that reflected a dawning realization: “Business must learn the lesson,” he warned, “that political power is necessary; that such power must be assiduously cultivated; and that, when necessary, it must be used aggressively and with determination.” Over the subsequent years, the lobbying industry boomed, organized labor declined as an economic and political force, and business groups became adept at assiduously cultivating friends on both sides of the aisle.
It used to be that incumbents could gauge roughly how much money they would need to raise for an approaching race. Now, under the threat of vast, wholly unpredictable sums coming from unknowable sources, they can never feel confident that they have raised enough. That means everyone will need to raise more money all the time. If the new wave of money proves decisive up and down the ticket this fall, politicians of both parties may become even less likely to push policies unpopular with established interests. This need not mean that illegitimate interests would be heard. It need not mean that the kind of quid pro quo deal-making that led to the Watergate scandal would ensue. The result could be less dramatic and less obvious than either of those: Even as a politicized press keeps exaggerating small differences, the political debate would continue to narrow. Over time, the great political contest of ideas—the one Jim Bopp and Trevor Potter both celebrate—would become even less of a contest.
Our politics has more than one kind of incumbent. There are the officeholders, and there are the people and corporations that have already made it in America, that want to protect and enlarge the advantages they get from the government. It seems quite plausible that all of their interests are now coming into alignment.