Two years ago, the U.S. Supreme Court lifted federal campaign finance limits with its Citizens United decision. Last week in South Carolina, the consequences of that unfettered flow of money played out in ugly and comical ways. But if Congress fails to act, nobody will be laughing, because the lack of independence and transparency in the system threatens to undermine American elections.
The absurdity of the current rules of engagement has been expertly lampooned by comedians Stephen Colbert and Jon Stewart. Colbert started a super PAC to make a point. It was too late for him to get on the ballot in South Carolina, so the political action committee started running ads for Herman Cain, who had dropped out of the race. Colbert then handed off the PAC to Jon Stewart, because campaign law says candidates must remain independent from them. The law also states that candidates and PACs cannot coordinate activities, but they can communicate to the general public via the media. If they hear each other, oh well.
So on “The Daily Show with Jon Stewart” last week, the two comedians sat side by side “not coordinating” their efforts as they broadcast their intentions. A campaign finance lawyer was on hand to intervene if the duo went over the line. He wasn’t needed, though he did offer the helpful advice that if they were to ever get fined, they could pay it off with super PAC funds.
It was a brilliant skewering of the system.
Unfortunately, making fun of it is the only recourse, because Congress has failed to pass post-Citizens United legislation that would introduce transparency. In his majority opinion, Associate Justice Anthony Kennedy noted that the tools were available for the citizenry to be informed about who is backing candidates, and that this disclosure would serve as the counterbalance to lifting finance limits. However, Congress has not enacted legislation to force donors out of the shadows in a timely manner. Under the current system, many super PAC donors choose to remain anonymous.
The lack of independence was driven home by the New York Times, which reported that all of the GOP presidential candidates and President Barack Obama have former aides who are running or helping to run super PACs. These PACs dominated the airwaves in South Carolina with attack ads. Meanwhile, the candidates could claim to dislike them but be powerless to stop them.
Congress attempted to remedy this with the DISCLOSE Act in 2010, which passed the House but got hung up in the Senate. That bill was flawed because it contained many special interest exemptions. For instance, it wouldn’t have applied to the National Rifle Association or AARP.
As this presidential campaign shows, Congress needs to take another run at a law that mandates timely disclosure for everyone. If not, American democracy will continue to be the butt of the joke.