Supreme Court’s Theory of ‘Independent’ Outside Money Is No Longer Operative

The final numbers are not in yet, but we already have more than enough information to make one call in the 2012 elections: The U.S. Supreme Court’s Citizens United vs. Federal Election Commission decision can be deemed a failure based on the very rationale that the court used to justify it.

In Citizens United, the court decided to permit unregulated outside spending by corporations and other entities that are not connected to candidates because it assumed such expenditures would be “independent” and, therefore, not potentially corrupting. To borrow an expression from the Watergate era, which led to our modern campaign finance rules, the court’s assumption is “no longer operative.”

This can be shown by looking at the activities of super PACs, which are spending the most unregulated money. About 60 percent of super PACs active this campaign cycle have devoted themselves to helping just one candidate, a report released last week by Public Citizen shows. These single-candidate super PACs have accounted for about 55 percent of all super PAC expenditures.

Many of these super PACs are founded, funded or operated by friends, family members, or political allies of the candidate they support. Such friends and family plans cannot plausibly be deemed independent. The phenomenon of super PACs being closely connected to candidates is not limited to those that sprang up to support Mitt Romney, President Obama and other presidential contenders. Many super PACs that are focused on congressional races are essentially in-house operations, as well.