Might Senate Republican leader Mitch McConnellAddison (Mitch) Mitchell McConnellOvernight Health Care: Florida becomes epicenter of COVID-19 surge | NYC to require vaccination for indoor activities | Biden rebukes GOP governors for barring mask mandates McConnell warns Schumer cutting off debate quickly could stall infrastructure deal Top House Democrat says party would lose elections if they were held today: report MORE, the archenemy of campaign finance reform, find something to like about Judge Merrick Garland?

With both Democratic presidential candidates calling for income redistribution and campaign reform, President Obama has nominated to the Supreme Court a co-signer of the 2010 federal appeals court opinion creating super-PACs. These have become the 1 Percent’s favorite vessel for supporting preferred candidates and parties. Super-PACs have already raised $652 million for the 2016 elections — three-quarters from mainly wealthy individuals and the remainder from corporations, labor unions and other organizations.

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News media often note that the Supreme Court’s Citizens United decision “paved the way” for the District of Columbia Circuit Court’s unanimous judgment in SpeechNow. But this is a half-truth that lets the appellate judges, including, Merrick Garland, off the hook.

In January 2010, Citizens United ruled that corporations could spend as much as they wished to promote their preferred candidates and parties as long as they did not act in concert with their beneficiaries. It held that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

Two months later, SpeechNow went a great deal further.

It decreed that non-corporation political action committees (PACs) making only independent expenditures could accept unlimited contributions from individuals. That decision undermined almost all federal contribution limits. Wealthy individuals could now blow past legal ceilings for contributions to candidates, parties and PACs by making unlimited contributions to super-PACs, spending in behalf of their favorites.

The D.C. Circuit asserted it was simply drawing a logical deduction from Citizens United: Because the Supreme Court “holds that independent expenditures do not corrupt or give the appearance of corruption as a matter of law, then the government can have no anti-corruption interest in limiting contributions to independent expenditure-only organizations.”

However, this “logic” had nothing to do with the real world of campaign financing. The basic flaw in the court’s reasoning, as empirical evidence presented to the court by the Federal Election Commission and campaign finance reform groups demonstrated, was that even if an independent spender were not acting in concert with candidates or parties, its donors were often direct contributors to these actors. By supporting, via contributions to an independent spender, politicians with whom they already had direct financial ties, the donors certainly provoked an “anti-corruption interest.”

For example, after Congress banned unlimited “soft money” contributions to political parties in 2002 — because of the perceived corruption threat — many large individual donors promptly switched their unlimited giving to independent “527” political organizations, the most important of which were blessed by winks and nods from national party leaders. Wealthy former soft money donors supplied two-thirds of the $426 million spent by 527s in the 2004 elections. It would be the height of political naïveté to suppose that these politically connected donors no longer posed a corruption risk simply because they had changed partisan vehicles.

More fundamentally, almost all the large individual donors to partisan 527s simultaneously made federally limited contributions to candidates and parties of the same political ilk. They directly subsidized many of the political actors that also benefited from their unlimited donations to 527s. During the 2006 election cycle, they gave an average of $69,000 to candidates, parties and PACs and $513,000 to 527s. This two-track system of direct and indirect campaign financing intensified the dangers that federal contribution limits were designed to prevent. Briefs presented to the Circuit Court showed that some prominent two-track donors received benefits from the federal officials they aided.

By enabling super-PACs, which can electioneer more explicitly than 527s, SpeechNow has amplified the threat of corruption or its appearance. In the 2012 election cycle, 99 of the top 100 individual donors to outside spending groups — mainly super-PACs — gave between $885,000 to $93 million (mostly in the $1 million to $4 million range). Ninety-four of these donors also contributed from $60,000 to $415,000 to candidates and parties. Last year, the Department of Justice indicted Sen. Bob MenendezRobert (Bob) MenendezThis week: Senate starts infrastructure sprint Lobbying world This week: Congress starts summer sprint MORE (D-N.J.) for misusing his office in 2011-2012 to benefit a donor/friend. The latter contributed substantial federally limited campaign funds to the senator and his allies and $600,000 to a super-PAC that spent the money in support of Menendez’s re-election.

As the White House pursues its public campaign to persuade the Senate to consider Garland’s nomination, it should ask him to explain to senators and the public why he joined the SpeechNow opinion and what he thinks now of the results. Democratic presidential candidates, who may have to make their own decision by November about whether to support his nomination, should make similar requests. Americans deserve to know more about how this Supreme Court nominee thinks about one of the central issues for the 2016 election and American democracy.


Stephen R. Weissman is former associate director for Policy of the nonpartisan Campaign Finance Institute.