U.S. Supreme Court's Assumption That Outside Groups Are Independent Is Proven False at the State and Local Levels

The U.S. Supreme Court's assumption in its 2010 Citizens United v. Federal Election Commission decision that outside entities can be assumed to be independent of candidates is demonstrably false for state and local elections, as well as at the federal level, according to a new Public Citizen report (PDF).

The fallout from Citizens United and the direction the court should take on money in politics cases is likely to be a topic raised at next week's hearing on the nomination of Neil Gorsuch to be a Supreme Court justice.

The court's ruling opened the door for outside entities to collect and spend unlimited amounts of money to influence elections, and led to the creation of super PACs. But the decision was based on an assumption that outside entities act independently of candidates "by definition," as Justice Anthony Kennedy wrote for the court's 5-4 majority.

Since then, the assumption of independence has been roundly disproved at the federal level, where candidates have routinely used super PACs as virtual arms of their campaigns to evade campaign finance limits.

Public Citizen's report (PDF), "The Foundation of Citizens United Is in Ruins," documents episodes of unregulated outside groups acting as accessories to campaigns at state and local races around the country.

"Outside groups raising unlimited amounts of money - all while operating as an arm of the candidate campaigns - has warped state and local politics into the Wild West," said Michael Tanglis, senior researcher for Public Citizen's Congress Watch division and lead author of the report. "Dedicated would-be public servants now have to ask themselves: Is it really worth facing hundreds of thousands of dollars in negative advertisements just to win an unpaid school board seat?"

The report (PDF) illustrates the fallacy of assuming that outside groups truly operate independently:

• In Chicago, a super PAC dedicated largely to Mayor Rahm Emanuel's re-election was formed by close Emanuel ally Rebecca Carroll immediately after she left Emanuel's administration. Carroll has called super PACs the "shiny new object in campaigns today," as "they provide new flexibility" in states where there is "far more stringent control." The super PAC received close to a million dollars in contributions on its first day of existence from just seven individuals - all of whom had previously contributed the maximum amount directly to Emanuel's campaign.

• In Washington, D.C., a year after Mayor Muriel Bowser's election, her former campaign treasurer created an outside group, FreshPAC, which was named after Bowser's own campaign slogan - a "fresh start." FreshPAC came under intense criticism when reporting showed that many of its donors were doing business, or seeking to do business, with the District. An unidentified donor to the group told The Washington Post, "If you want to continue to have good favor with the mayor," giving to FreshPAC "is something you do."

• In Elizabethtown, N.J., a super PAC - whose largest individual donor was a for-profit bail industry lobbying group - spent hundreds of thousands of dollars to install allies on unpaid school board seats. The super PAC's expenditures were so overwhelming that the candidates it supported barely bothered to raise money for their campaigns.

• In Oklahoma, a candidate for state school superintendent, Joy Hofmeister, strategized by e-mail that the "independent" group supporting her would use anonymous corporate money to do the dirty work of running negative ads while she would "take the high road" with her ads. In one text message, Hofmeister gleefully exclaimed that a "wind turbine lobbyist [is] interested in my IE. :)." (IE stands for independent expenditure campaign.) Hofmeister has since been indicted as a result of e-mails law enforcement officials discovered during an unrelated drug bust involving one of her allies.

"If a case challenging Citizens United arrives before the court, Justice Kennedy will be presented with overwhelming evidence that the assumption of independence 'by definition' has been disproved," said Lisa Gilbert, vice president of legislative affairs for Public Citizen. "The assumption of independence is the foundation upon which the Citizens United house was built, and if the foundation is unstable, the house should come tumbling down."