Duty Free

Theoretically, campaigns should serve a large and noble public purpose, educating voters about the candidates, the issues, and the general state of public policy. That sure doesn't sound like a description of current campaigns in the United States, though. In fact, one could argue persuasively that the primary side effect of our campaigns now seems to be increasing public cynicism and confusion. And, as bad as it is, it may be about to get worse.

What will no doubt worsen this trend is the fallout from the disastrous Supreme Court political decision in the Citizens United case, which opened the door to unlimited corporate money flowing into campaigns. In Citizens United, the Court notoriously ruled that, for the purposes of campaigns, corporations were “persons,” and as such were entitled to unlimited political speech. In such cases, "unlimited speech" is just another way of saying spending unlimited money. This new dimension is deeply troubling, as it will usher in a tsunami of campaign contributions from corporations. 

Over time, this results of this horrible Supreme Court decision will surely eat away at the very idea of fair and transparent political campaigns. Money already is flowing into campaigns and super PACs—the political action committees that operate under the fragile fiction that they are independent of the candidate they are supporting—at a prodigious rate. And, as super PACs do not have to report contributors during campaigns, much of their funding is shielded from public disclosure until after the election. (We do know however that a Las Vegas gambling mogul gave $5 million to a PAC supporting Newt Gingrich.)

That’s not all. As President Obama noted in his 2011 state of the union address, Citizens United could well have opened an enormous loophole in current campaign law by permitting foreigners acting as corporate persons to contribute unlimited amounts to super PACs. The Supreme Court just weeks ago affirmed a decision, Bluman v. FEC, that upheld the ban on foreign nationals spending in U.S. elections. But one is left wondering whether foreign nationals, acting as "corporate persons" under Citizens United, would be permitted to do what is impermissible for them to do as a "human persons."

In practical terms, ownership (or effective control) of a corporation can be a slippery thing. Indeed, the shares of even most medium-sized corporations are widely held. Many firms are explicitly multinational. Who knows, in these cases, the nationality of the people making the decisions about donations? In any event, absent further action by Congress and the Court, it appears that even domestic subsidiaries of foreign corporations can spend, just like all other U.S. corporations.

In a larger context, we simply don’t know where most of 2012 campaign money is coming from. Cynics among us may say that this is no more than a new way of reinforcing the notion that many politicians are bought and paid for by their large donors. But what is happening—as well as what may happen—is something uglier and more insidious.

The Court is highly unlikely to reverse itself on the key components of Citizens United. But the influx of foreign influence in our campaigns may provoke the sort of backlash that is needed. One thing it won’t do, however, is restore our faith in the American political process.