Wednesday marked the fifth anniversary of the Supreme Court’s decision in Citizens United v. Federal Election Commission, the landmark ruling that has led to an explosion in campaign spending.
So far, the state Legislature hasn’t passed any legislation to deal with the fallout of Citizens United and related court rulings, but it gets another chance in the 60-day legislative session that began last week.
In Citizens United, a divided Supreme Court struck down a federal law that prohibited corporations from spending money on elections, freeing them to make unlimited independent expenditures.
Corporations aren’t just for-profit companies. Generally, anyone can form a corporation. Citizens United, a political advocacy group, is a nonprofit corporation.
The Supreme Court’s decision also opened the door for unions and others to make unlimited independent expenditures on elections. Those are expenditures made independently to support or oppose candidates, meaning they can’t be contributions to candidates or money spent in coordination with candidates.
Because of Citizens United, we now have independent expenditure-only political action committees, commonly known as super PACs, operating in state and federal elections.
Citizens United also set off a sharp jump in election spending by so-called dark money groups. Those are tax-exempt groups that don’t have to disclose their donors – something that super PACs and traditional PACs, which contribute to candidates, must do.
Short of adoption of an amendment to the U.S. Constitution or the Supreme Court reversing itself – both unlikely events, at least in the short term – Citizens United is the law of the land.
Still, states can enact laws regulating some behavior of super PACs and forcing dark money groups to make some donor disclosures.
“It’s incumbent to do what we can do to get this under control,” says Sen. Peter Wirth, D-Santa Fe. “We can’t do nothing.”
Super PACs, which aren’t supposed to coordinate with candidates, spent millions of dollars on elections in New Mexico last year, but there is no law that defines what exactly coordination is.
That means super PACs have faced little risk of legal action even if they engaged in obvious coordination, such as working hand in hand with a candidate on a TV ad.
We don’t even know exactly how much super PACs spent in the elections last year, because they aren’t required to distinguish themselves from traditional PACs when registering with the Secretary of State’s Office. Also, a single group can have both a super PAC and a traditional PAC.
Dark money groups have been active in New Mexico elections, as well, although less so than super PACs.
Wirth this week plans to introduce legislation to define prohibited candidate coordination by super PACs. It will be his fifth attempt at passage of such a law since 2011.
His bill also would force donor disclosure by dark money groups and others that purchase certain political advertising but aren’t now required to report their contributors to the state.
“Citizens United turned our (campaign) finance laws on their head,” Wirth says. “We have to do the one thing the court said we could: require disclosure.”
Viki Harrison, director of Common Cause New Mexico, says, “We want to know where the large amounts of money are coming from.”
A final draft of Wirth’s bill wasn’t yet available.
While Wirth will introduce the legislation on super PACs and dark money groups in the Democratic-controlled Senate, Republican Rep. James Smith of Sandia Park will introduce it in the Republican-controlled House of Representatives.
But while legislation can address some of the fallout of Citizens United, the issue of political inequality will remain.
“Your voice is always going to be drowned out unless you can make those $5,000 and $10,000 donations,” Harrison told a news conference Wednesday at the Capitol to mark the anniversary of the Citizens United ruling.
UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at firstname.lastname@example.org or 505-992-6280 in Santa Fe. Go to ABQjournal.com/letters/new to submit a letter to the editor.