In the Supreme Court’s landmark 2010 case Citizens United v. Federal Election Commission, the court declared that corporate independent political expenditures are protected free speech under the First Amendment and cannot be constrained. The court wrestled with the possibility that unlimited spending might have a corrupting influence on politics, but in the end it decided that free speech was the overriding goal and that as long as the expenditures were independent of candidates, and transparent, they would not increase corruption. The campaign cycles since then have been increasingly awash in this spending, much of it going to super PACs.
Now comes a disturbing set of facts that call into question the court’s logic and conclusions about corruption. The April 1 indictment of Sen. Robert Menendez, D-N.J., on bribery charges alleges a chronology that should worry everyone who cares about integrity in national politics. According to the indictment, a wealthy Florida ophthalmologist, Salomon Melgen, who was seeking Menendez’s support on matters before the U.S. government, wrote two checks for $300,000 each in 2012 to the Senate Majority PAC, a super PAC devoted to supporting the election of Senate Democrats.
The donations were earmarked for use in the senator’s state of New Jersey. The senator was the only Democrat running for the Senate then in New Jersey. The doctor handed over one of the checks to a close friend of Menendez at the senator’s annual fundraiser. Is this what the court envisioned as “independent”?
The super PAC has said it acted within the law. It will be up to a jury to decide whether the doctor and the senator engaged in corruption. But the facts asserted in the indictment are sufficient to call into question the court’s underlying thinking in Citizens United. The court declared that independent expenditures, including those made by corporations, “do not give rise to corruption or the appearance of corruption.” The court added that there is “only scant evidence that independent expenditures even ingratiate.”
In this case, the money may have earned the doctor more than just gratitude. The indictment describes a flurry of emails, calls and requests for meetings by the senator on behalf of the Florida doctor. The senator aimed his efforts at Cabinet members, regulators and fellow senators. There is no evidence of a direct quid pro quo, but the timing is suspicious. For example, on June 1, 2012, the doctor issued a $300,000 check, through his company, to the super PAC, earmarked for New Jersey politicking. On June 7, the senator met with the acting administrator of the U.S. Centers for Medicare and Medicaid Services to advocate for a resolution of a Medicare billing dispute involving the doctor to the tune of nearly $9 million. Just coincidence?
What’s at stake here is more than just one case. The Supreme Court has created an environment pregnant with possibility for corruption. The principles of “independent” expenditure are being routinely subverted. The reality of corrupt politics — money for favors –— is growing more evident by the day.