In the presidential campaign, money talks

Think money doesn't talk? Try telling that to this year's GOP presidential hopefuls, whose fates are more than ever tied to a handful of wealthy donors who bankroll the super PACs that raise and spend unlimited amounts of cash on their behalf. Campaign finance reports submitted to the Federal Election Commission this week showed that just 23 big donors contributed $53 million to the super PACs supporting Mitt Romney, Rick Santorum, Newt Gingrich and Ron Paul. That was more than the total amount raised by all the candidates' campaigns combined, where the limit on contributions by individuals is just $2,500.

It's hard to overstate the impact megabuck contributors may be having on voters through independent political action committees that, as a result of the Supreme Court's 2010 Citizens United ruling, not only can spend as much as they want to promote candidates but in some cases don't even have to disclose who is bankrolling their operations. Documents filed with the FEC show that during January, just five donors gave $19 million to super PACs backing candidates they favored — a quarter of all the money raised for the presidential race that month. It would be naïve to think those free-spenders won't expect their generosity to be rewarded if their candidate wins.

Moreover, the flood of unregulated money has been one of the biggest factors in the volatility of this year's race, when the contenders' fates seemed to rise or fall more or less in direct proportion to the number of super PAC-funded attack ads flung their way. One super PAC donor, Gingrich supporter Sheldon Adelson, recently said he would be willing to spend as much as $100 million to see his candidate elected. In the event that Mr. Gingrich does become president, you can be sure his ear will always be open to whatever Mr. Adelson has to say.

But aside from the risk that massive infusions of cash could corrupt the political process — it's been known to happen — it's now clear that the Citizens United decision changed the political landscape in ways the Supreme Court majority did not anticipate.

Super PACs, for example, are supposed to act independently of candidates' campaigns, and the candidates themselves are legally barred from any contact with the people running the operation. But in practice, the super PACs are often run by former aides, business partners or even relatives of the candidates; before he dropped out of the race, Jon Huntman's bid was backed by a super PAC funded almost entirely by his father. Whether officially coordinated or not, their activities closely dovetail with what the campaigns are doing. The idea of an impenetrable wall separating the candidates' campaigns from the super PACs supporting them has revealed itself to be little more than a convenient legal fiction.

There are signs the justices are beginning to recognize that another look at the issue may be warranted. In December, Montana's state supreme court refused to uphold a lower court ruling that a 1912 state law banning corporations from contributing to political campaigns violated the Citizens United ruling. The Montana judges argued that given the state's long history of political corruption, it had a right to protect itself from the power of large corporations to exert undue influence over lawmakers and public officials through campaign contributions that may as well be bribes.

Most observers expected the Montana ruling to be quickly overturned when the corporate plaintiffs appealed the case to the U.S. Supreme Court. But on Friday, the justices instead granted a stay in the Montana case to give both sides time to file papers seeking Supreme Court review. In explaining her action, Justice Ruth Bader Ginsburg wrote that "Montana's experience, and experience elsewhere since this court's decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations 'do not give rise to corruption or the appearance of corruption.'" The latter phrase had been a key argument of Justice Anthony Kennedy's original majority opinion in Citizens United.

Justice Ginsburg's order holds out hope that the nation's highest court may be willing to reconsider its original decision to allow groups to raise and spend unlimited amounts of money in political campaigns. Even if the court doesn't reverse itself, it could substantially narrow the earlier ruling's scope in ways that guard against the worst abuses to which the system is currently vulnerable. Granted, any new decision on the issue probably will come too late to have much effect on the outcome of this year's election cycle, which is already well under way. But at least the fundamental principle that candidates and elections can't be bought and sold by anyone, regardless of how wealthy they are, would be reaffirmed.

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