Justice

Jeb Bush Unveils Sneaky New Plan To Make Citizens United Even Worse

CREDIT: AP Photo/Steven Senne

CNN has an eye-popping headline guaranteed to shock anyone familiar with Jeb Bush’s $100 million super PAC: “Jeb Bush would ‘eliminate’ Citizens United.”

Don’t believe this shocking headline — or, at least, don’t believe it without heaping on a mountain of salt first. The reality is that Bush would “eliminate” Citizens United in much the same way that email eliminates the need for the Pony Express. He would not so much end political corruption as make it far more efficient.

The former Florida governor did tell CNN’s Dana Bash that “if I could do it all again I’d eliminate the Supreme Court ruling” Citizens United, which is widely blamed for opening the floodgates to hundreds of millions of dollars in campaign spending by wealthy donors. But Bush’s concern has nothing to do with the corrupting influence of big campaign spenders. He just thinks that our current system is too hard on the candidates who benefit from such spending.

The crux of Bush’s complaint is that the Citizens United framework permits “unregulated money for the independent and regulated [money] for the campaign.” That is, donors can give unlimited sums to super PACs and other groups that are ostensibly separate from campaigns, but they can only give relatively small sums — $2,700 per election — to the campaign itself. Thus, a billionaire can write six, seven, eight or even nine figure checks to Bush’s super PAC Right to Rise, but the same billionaire can only give a maximum of $2,700 directly to the Bush campaign.

According to Bush, “this is a ridiculous system we have now where you have campaigns that struggle to raise money directly and they can’t be held accountable for the spending of the super PAC that’s their affiliate.”

Bush’s solution, however, is not to cut off unlimited funds from wealthy donors, it’s simply to allow them to give directly to candidates. As Bush told CNN, he would take the current system of unregulated donations to outside groups and regulated donations to campaigns and “turn that on its head if I could.”

Even the five justice majority in Citizens United understood what could go wrong in the world Bush describes. In the mid-1970s, the Supreme Court held that campaign finance could be regulated “to limit the actuality and appearance of corruption resulting from large individual financial contributions.” Citizens United defined the world “corruption” very narrowly to only include “quid pro quo corruption” — that is, an exchange of “dollars for political favors.”

Thus, under the Citizens United framework, direct contributions to candidates may be regulated because of the high risk that a big spender will trade their donation for a political favor if they can donate directly to the candidate’s campaign. By contrast, the Citizens United majority felt that donations to outside groups would not lead to corruption because the recipient of the money was removed from the actual candidate.

This is one of the most controversial — and widely mocked — distinctions in American constitutional law. But, at the very least, it recognizes that there is some point where wealthy donors begin to have an undue influence on elected officials.

Bush’s framework, by contrast, would even eliminate the thin wall between donors and candidates that remains after Citizens United. Under his proposed rule, it’s unclear that anything would prevent a billionaire from walking into Bush’s office with a massive check and a list of demands, and then refusing to turn over that check until they are sure that Bush will comply with those demands.

Simply put, Bush would permit a level of corruption that even the Roberts Court views as intolerable.