In light of the Menendez mistrial, Zephyr Teachout has an excellent article on how the Supreme Court is making it increasingly difficult to inhibit corruption, both ex ante and ex post:
Over the past decade, starting with a 2007 case, Wisconsin Right to Life v. FEC, and most prominently including Citizens United, the Roberts Court has been at war with these prophylactic laws — concluding that they are over-inclusive and that they chill free speech. In Wisconsin Right to Life, the Supreme Court struck down a section of the McCain-Feingold Act that limited the ability of corporations and unions to run TV ads. The provision said they could not fund broadcast ads costing more than $10,000 that mentioned a candidate for federal political office within 30 days of a primary election or 60 days of a general election.
It was a classic prophylactic rule, one with clear boundaries. Think of it as a speed limit.
Justice Roberts, writing for the Court, said the rule infringed on free speech rights and didn’t precisely target corruption — because, he said, corruption only means quid pro quo deals, and there was no evidence of massive quid pro quos between corporations and candidates.
Three years later, in Citizens United, the Court struck down yet another powerful prophylactic rule. The law had been that corporations and unions can’t spend unlimited money that directly advocated the election or defeat of a candidate. The Court again said that this law violated the First Amendment (because citizens have a right to hear corporate and union political speech). The Court said — again — that it didn’t target quid pro quo corruption precisely enough, because there was insufficient evidence that corporations and unions were engaged in explicit deals with candidates.
Citizens United opened the floodgates and allowed the creation of Super PACS — entities that take and spend unlimited corporate, union, and individual money and advocate explicitly for the defeat or election of individual candidates.
The Menendez trial was a direct outgrowth of Citizens United. The activity that was banned before Citizens United was at the heart of one of the charges against Menendez. The hundreds of thousands of dollars donated to a Super PAC was the alleged quid for some of Menendez’s actions. Without Citizens United, this situation could not have occurred — nor a charge resulted — because the campaign vehicle of the Super PAC had been prohibited as a prophylactic.
Here’s what should madden you: In his decision in Citizens United, Justice Kennedy said that we should not worry corporate spending would lead to greater corruption, because bribery laws would still deal with our corruption problems. Then the Court went ahead and weakened bribery laws.