As Indiana Treasurer Richard Mourdock kicked off his U.S. Senate campaign in February 2011, the most conspicuous person in the wings was Terre Haute attorney Jim Bopp Jr.
There stood the man who has changed the federal election finance system with a series of U.S. Supreme and district court victories he framed and argued — Citizens United, SpeechNow — and on Wednesday, McCutcheon v. the Federal Election Commission.
Mourdock's Republican primary challenge to U.S. Sen. Dick Lugar, and later, his losing race against Democrat Joe Donnelly, would be the petri dish of how two of those decisions would impact American and Indiana politics.
That 2012 Indiana Senate race would see $51 million spent by Mourdock, Lugar and Donnelly, and on their behalf by corporations and Super PACs — the political action committees which bundled donations and spent them, in theory, independent of the candidates. To give you contrast, Hoosier voters had not seen a U.S. Senate race over the $10 million mark prior. We have seen gubernatorial races in the $20 million range.
So here's a primer. Citizens United was decided in 2010 by the U.S. Supreme Court, which basically ruled that government has no right to regulate political speech, paving the way for corporate money to flood into political races. In March 2010, the U.S. Court of Appeals for the District of Columbia issued a unanimous opinion in SpeechNow.org v. FEC, deciding the FEC could not limit donations to independent political groups that will spend money to support or oppose candidates.
This essentially created the Super PACs — affiliated with groups like the National Rifle Association, Club For Growth, Crossroads GPS, Freedomworks, ActRight, Americans For Prosperity, Norpac, Senate Conservatives Fund — that pumped in millions of dollars on behalf of Mourdock's candidacy in the homestretch of the campaign that fall.
In the final weeks of the Mourdock/Donnelly race, Karl Rove's Crossroads GPS spent around $3 million on behalf of Mourdock. The irony is that Hoosier TV and radio stations, newspapers, advertising agencies and campaign consulting groups saw little of this money. The money was spent on Fox News and to out-of-state direct mail houses. Donnelly received more than $5.5 million in a similar time frame from Democratic-affiliated advocacy groups.
The McCutcheon ruling ends the existing limit of $74,600 to party committees and PACs, and $48,600 to all federal candidates. This would allow a rich donor like Sheldon Adelson to contribute the maximum $5,200 to every Republican (or Democrat if you're George Soros) in the country.
Justice Stephen G. Breyer said in writing the McCutheon dissent that it essentially opens "the floodgates" for the rich and powerful to spend on campaigns.
But Chief Justice John G. Roberts, the Long Beach, Ind., native who wrote the majority opinion, reasoned, "Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests and Nazi parades, despite the profound offense such spectacles cause, it surely protects political campaign speech despite popular opposition.”
Bopp explained, "This is also a great victory for political parties, who have been disadvantaged recently by the rise of super-PACs. Political parties serve vital purposes, such as tempering polarization, and this is a step in the right direction to re-empower them."
Republican National Chairman Reince Priebus added, “Today’s decision is an important first step toward restoring the voice of candidates and party committees and a vindication for all those who support robust, transparent political discourse. I am pleased that the court agreed that limits on how many candidates or committees a person may support unconstitutionally burden core First Amendment political activities. When free speech is allowed to flourish, our democracy is stronger.”
Those perspectives depend on your position. Clearly the political parties had lost clout to the Super PACs in recent cycles. In the midst of the 2012 Senate race, Donnelly said, "I think that there are people out there trying to buy Indiana’s Senate seat. I think Indiana’s Senate seat ought to belong to the people of Indiana. I think the Supreme Court decision a few years ago — Citizens United — was a terrible mistake. Even further, what was a mistake was much of this money we don’t even know where it comes from.”
I asked Mourdock after his first debate with Donnelly about the millions of dollars gushing in around his campaign, with the candidate having little control. It used to be that a candidate and campaign could control and fine tune a very specific message. In the craziness of the 2012 Senate race, the supposedly uncoordinated spending created a hodgepodge of messaging, and it nearly obscured the Mike Pence/John Gregg gubernatorial race. "That's a fair question," Mourdock answered. “I want to be very careful here. Some candidates have gotten in trouble — accused of sending a message independent of what they said in the microphone. I’m not doing that.”
Mourdock then restated the question: “Am I comfortable with the system when so much money comes in?” A few seconds later, he added, "I wish we had a better system."
What would a "better system" look like? I remember Club For Growth President Chris Chocola taking me to task when I questioned whether all this Super PAC spending was really uncoordinated. Chocola insisted the system in 2012 was "transparent." But spending hours sifting through the various Club For Growth PAC contribution lists, it was anything but transparent.
Today, the technology exists for complete transparency. In theory, a donor could scan a check into a digital format before sending it on to a candidate, political party or PAC. It could be quickly posted on the FEC website into the candidate, campaign or PAC's account. Citizens should be able to see who is spending what for who, in short order.
The rich are going to spend money on campaigns and parties. The key is to allow voters to know who is writing the checks and as quickly as possible.