By Barbara Borst —
Money has swaggered through U.S. elections for decades – buying television ads, robo-calls and bumper stickers. But this year, it has been up to new tricks.
The 2010 Supreme Court decision unleashing corporate donations injected vast sums into races for the presidency, Congress and beyond. Corporate money is still restricted from going to candidates and parties, but it has filled the coffers of political action committees, especially SuperPACs, that face few restrictions.
First published in November 2012 on tutawaza.com.
The change provoked an outcry throughout the campaign season, with critics warning of dire consequences for American democracy, while other voices defended the Court’s emphasis on free speech.
A recent poll showed 89 percent of Americans believe there is too much corporate money in politics. The poll was conducted by the Corporate Reform Coalition, which includes the League of Women Voters, Demos.org and dozens of other groups.
“More than 80 percent of every ideological and partisan subgroup expressed agreement that there is way too much corporate money in politics,” the poll found.
The Court’s ruling may seem an obstacle to some who want change, but numerous organizations and individuals are gearing up to alter the role of money in the next election. Their ideas include new versions of campaign finance reform, a re-imagined public finance system, proposed laws on disclosing some or all information about contributors, investigations of the money trail, and calls to shorten the campaign season so that money plays a smaller role.
Such ideas are beginning to attract attention, and advocates predict a surge in demand for change not only from a public tired of sniping and gridlock in Congress but also from many Democratic and Republican politicians.
The SuperPAC Impact
This is not the first time that big money has surged into politics. The Watergate scandal of the 1972 election prompted Congress to create a public financing system for presidential elections. In 2002, concerns about “soft money” donations that fall outside restrictions on candidates inspired two senators, John McCain, the Arizona Republican, and Russ Feingold, the Wisconsin Democrat, to champion campaign finance reform. The resulting law is the Bipartisan Campaign Reform Act, commonly called McCain-Feingold.
The Supreme Court upheld major provisions of that law in 2007, including limits on ads that are financed by corporations or unions, mention a candidate and are broadcast close to an election.
But, in 2010, the Court’s ruling in the case of Citizens United v. Federal Election Commission changed the scene dramatically. The Court found that McCain-Feingold limitations on the political speech of corporations and other entities violated First Amendment guarantees of freedom of speech.
McCain and Feingold, now a former senator, said in a statement on the second anniversary of the Court’s ruling, that the decision was not only “radically activist” but also showed “unprecedented naivete” and “charted a course for legalized bribery.”
The decision led to the rise of SuperPACs, which the Federal Election Commission calls independent expenditure-only committees and defines as “individuals, groups, political committees, corporations or unions expressly advocating the election or defeat of clearly identified federal candidates.” The FEC specifies that expenditures by these groups “may not be made in concert or cooperation with, or at the request or suggestion of, a candidate, the candidate’s campaign or a political party.” http://www.fec.gov/press/press2011/ieoc_alpha.shtml
By contrast, there are limits on individuals’ donations to a candidate, party or traditional political action committee: currently $2,500, $30,800 and $5,000, respectively. http://www.fec.gov/ans/answers_general.shtml
Since the Supreme Court ruling, Citizens United and its affiliates have been busy producing what the group’s website calls “high-impact, sometimes controversial, but always fact-based” documentary films, including “The Hope and The Change,” a film about President Barack Obama. The group’s Presidential Coalition project strives to “educate the American public on the value of having principled conservative Republican leadership at all levels of government.”
Citizens United did not respond to requests for an interview. Nor did major SuperPACs supporting the two presidential candidates — Restore Our Future, which backed Republican candidate Mitt Romney, and pro-Obama Priorities USA Action.
Andrew Tobias, treasurer of the Democratic National Committee, offered one recommendation in an e-mail response to the question of how to improve the campaign system:
“Obviously I think john McCain is right about citizens united and that superpacs are a horrible idea. I’m for ‘clean elections’ and public financing. How to get these things? Well, elect progressives and appoint progressive judges. And encourage reform at the state and local level as well,” he wrote.
Curtis Ellis, spokesman for the Campaign for Primary Accountability, a Texas-based SuperPAC, said the criticism of SuperPACs misses the point that incumbents have a major advantage over challengers.
“We’ve heard that SuperPACs are bad, the worst since Satan,” he said. “Incumbents enjoy all kinds of advantages which add up to the ultimate SuperPAC. They have access to fundraising inside the Beltway, if not explicitly barred. They have long-term relations with everybody who writes $5,000 checks.”
“Campaign finance laws were written with huge loopholes for party committees,” Ellis said. “This is not paranoia. This is the way it works.”
Some of the ways it worked in 2012:
This year’s elections were the most expensive ever – about $6 billion, according to The New York Times.
The Center for Responsive Politics calculated in mid-November that SuperPACs pulled in $661.5 million for the 2012 elections, including $252.9 million for the presidential race. Top among the many SuperPACs favoring each candidate were Restore Our Future (Romney), $131 million, and Priorities USA Action (Obama), $63.9 million. http://www.opensecrets.org/pacs/superpacs.php?cycle=2012
Casino tycoon Sheldon Adelson gave more than $30 million to support Romney, according to The Associated Press.
Democrats initially eschewed SuperPACs but ended the campaign season by making major contributions to them.
SuperPAC funds came on top of contributions to the candidates: $632.2 million to Obama and $388.7 million to Romney, according to FEC filings in mid-Oct.
The U.S. Public Interest Research Group calculated that total 2012 spending by organizations other than parties and candidates came to $1.11 billion, nearly a quarter of it in the form of “dark money” that cannot be traced to its source. http://uspirg.org/news/usp/big-money-and-secret-spending-distorting-democracy
USPIRG and other nonprofits that analyzed campaign data filed with the FEC concluded that 60 percent of all SuperPAC money came from just 132 donors and that 61 big donors put as much into SuperPACs as 1.4 million citizens gave to the two major presidential candidates.
What did all that money buy? Among other things, 140,000 pro-Romney political ads and another 160,000 pro-Obama ads, according to the Campaign Media Analysis Group at Kantar Media, and The New York Times. Nevada alone endured 73,000 ads.
No wonder a child in the ad-saturated swing state of Colorado cried on YouTube because she was overwhelmed by ads for “Bronco Bama” and “Mitt Rominny.”
What rankled many adults was not just the number of ads but also the personal attacks in them, the inability to find out who paid for them and the suspicion that money buys “improper influence” – politicians who respond to donors rather than constituents. (For more discussion of whether campaign money equals free speech or corruption, please see the sidebar.) A post-election editorial in The New York Times concluded: “A backlash against the damaging power of big money cannot come too soon.”
Should this Picture Be Changed?
Ideas for adjusting the system fall into three main categories: reinforcement of free speech, calls for transparency on donations, and proposals for reworking campaign finance laws.
Citizens United sees more free speech as the solution to current political problems.
David Bossie, the group’s president, recently posted a column on the website entitled “Why Do Incumbents Fear More Speech?” In it, he rips into prominent Democrats he says have focused on efforts to circumvent the Supreme Court decision instead of addressing economic problems.
Bossie writes that their efforts to pass the DISCLOSE Act, which would require disclosure of information about SuperPAC donors, are “an incumbent protection plan that would restrict the rights of the American people to join together and speak out against elected officials.” He writes that the Federal Election Commission already has abundant power to regulate elections.
“The answer to speech you don’t like is more speech — the American way since 1776,” he writes.
John Samples of the Cato Institute, a Washington think tank that emphasizes individual liberty and limited government, writes that campaign finance reform is a “loaded and biased” term for a vision of “government under the control of an ethical and enlightened elite.”
“I do not believe that campaign contributions have corrupted representation or American political culture in any significant way,” he says in his book “The Fallacy of Campaign Finance Reform.”
But he noted in an interview that the appearance of undue donor influence leaves the public “suspicious” about politicians and critical of the fighting in Congress. He added that, without SuperPACs, Obama would have had a significant edge in fundraising.
“There’s an enormous difference between him and anyone else on raising money – a couple of hundred million dollar advantage,” he said.
Others say that the goal should not be to create parity between candidates; it should be to create parity among voters.
When Bruce E. Cain, a political scientist at Stanford University, was asked whether the political system should be changed, he replied by e-mail, “Not in any easy way.” So far, reforms have not improved the system and may have made it worse, he added.
Cain said he and Samples are focusing on semi-disclosure of information about donors to SuperPACs as a short-term remedy. The idea is to require disclosure of donors’ occupations, industries or other significant information – but not their names. That way, donors would be “protected from retribution.”
The American Civil Liberties Union’s approach combines defense of free speech with greater transparency requirements. While declaring that the election system “badly needs repair,” the ACLU website says the group does not support regulations “premised on the notion that the answer to money in politics is to ban political speech.”
Instead, the ACLU favors increasing the resources available to candidates, particularly through a redesigned public finance system, as well as “carefully drawn disclosure rules” and “reasonable limits” on contributions, and enforcement of bans on links between candidates and SuperPACs.
At the Campaign for Primary Accountability, spokesman Curtis Ellis says his group uses the tools available under the Court’s decision to try to make elections competitive, especially primaries in districts dominated by one party, either party.
“One may agree or disagree with the Supreme Court’s decision. We’re looking at it very pragmatically,” he said. During the primary season, the campaign selected one-party districts, polled the public to see whether people were satisfied with their representatives and, if not, looked for credible challengers.
The group’s funding comes from conservative businessmen, according to FactCheck.org, which lists the campaign’s political leaning as “anti-incumbent.”
“We don’t look at the ideological issues,” Ellis said, adding that his organization challenges both Democrats and Republicans and is not trying to change the make-up of Congress, since it works in districts dominated by one party. Primaries tend to draw few voters, largely the most partisan ones, he added.
But the Campaign for Primary Accountability does hope to change the political system as a whole, albeit slowly, by challenging incumbents to answer to the people.
The Center for Responsive Politics, a Washington-based non-partisan group, generally does not advocate for specific laws but makes one exception — for transparency, which it sees as essential to holding politicians to account. It urges visitors to its website to investigate, and take action on, a variety of issues, including campaign bundlers, filing of campaign finance reports and disclosure of donors to independent political ads. http://www.opensecrets.org/action/index.php
The center runs OpenSecrets.org, which tracks and exposes the impact of money on elections and policies by gathering and publishing extensive information on campaign contributions and lobbying activities. http://www.opensecrets.org/
Elisabeth MacNamara, president of the nonpartisan League of Women Voters, said her organization is working on several ways to change the political climate, including transparency laws, public financing and a revitalized FEC, which has been weakened by partisanship and failure to appoint new members.
The league, she said, seeks to salvage the public financing of presidential campaigns, which she said had worked well but is now outdated. The system was first used in the U.S. in 1976; in 2008, Obama opted out, although McCain stayed in. This year, neither candidate used it.
The 2012 elections brought “unfiltered mudslinging” and “the awful effects of states trying to suppress votes” through new regulations, she said. Despite the Citizens United ruling, she says Congress can fix the campaign finance system.
“The (public financing) system was trying to broaden out contributions – think of leveling the playing field not so much between candidates as between voters,” she said.
MacNamara answers those who say donors should be able to contribute anonymously to protect free speech by saying that “you can’t assess the credibility of a speaker who is anonymous.”
On the league’s website, she posted a letter supporting the DISCLOSE Act proposed in Congress, which would require disclosure of SuperPAC donors’ identities. The reasons she gave were “corruption in our political system” through special interest financing of elections and “a few very loud voices (that) are allowed to overwhelm and drown out other voices.”
“But there is yet a third form of corruption – the corruption that comes when the voters are deprived of the information they need to make informed decisions about the candidates seeking their votes,” she continued. “Secret funding in elections is anathema in a democracy.”
Senator John McCain spoke against the DISCLOSE Act, telling fellow senators the bill was “closer to a clever attempt at political gamesmanship, than actual reform.”
McCain said the bill set high thresholds for donations that had to be reported to the Federal Election Commission. The result, he said, was that the identities of larger donors would be revealed while those of union members who donated small sums would not, even though the collective contributions of unions were quite large.
He concluded his remarks by calling on Democrats in the Senate to propose a bill that would require “true full disclosure for everyone.”
Blair Bowie, democracy advocate at the consumer organization U.S. Public Interest Research Group, said campaign finance reformers need to redefine the problem. It’s not traditional corruption, as in personal gain, but a system askew.
USPIRG challenges the Court’s assumption that independent expenditures cannot corrupt the process, and it raises the issue of candidate-specific SuperPACs, arguing that the public does not think of these groups as independent.
One way that USPIRG tries to bring change is by raising the issue at shareholder meetings of corporations that make big political donations, Bowie said.
Lawrence Lessig, a professor at Harvard Law School, proposes a new system for public financing of elections in his book “Republic, Lost: How Money Corrupts Congress – and a Plan to Stop It.” He argues that transparency is insufficient to tackle the improper influence that money buys.
Instead, he proposes what he calls the Grant and Franklin project, referring to the men depicted on $50 and $100 bills. Under Lessig’s plan, each citizen would have a $50 voucher, based on the first $50 he or she pays in federal taxes, to spend on any political candidates who opted into the system. Voters could spend another $100 per candidate, if they wished. Candidates would be eligible to receive those contributions if they agreed to accept only those contributions.
Lessig says the advantages of the system are that citizens would not see their taxes used for causes they don’t support, the system would be voluntary, it would permit additional contributions and it would put a great deal of money into campaigns. He outlines four strategies for implementing the plan, ranging from laws based on the public financing systems now used in Connecticut, Maine and Arizona to calls for a constitutional convention to address problems with the political system.
Lindsay Mark Lewis, a former finance director for the Democratic National Committee, says Lessig’s plan “would be an absolute disaster.” Now executive director of the Progressive Policy Institute, which describes itself as an “independent, innovative and high impact” think tank, he offers a few other ideas.
One, which he presented in a New York Times op-ed, argues that the best way forward may be to “repeal what’s left of the Bipartisan Campaign Reform Act.” Repeal, he wrote, would not eliminate big money in politics, but it would send it to candidates and parties, both of which are held to account by the FEC.
Another approach would be to end nonstop campaigning. Currently, he said, new members of Congress immediately come under pressure from their parties to start raising funds or face questions about why they’re not seeking reelection. This could be stopped if fundraising were not permitted until January of election year. That would push the primaries to late spring and make campaigns shorter and less costly.
Fred Wertheimer said his organization, Democracy 21, advocates for a multifaceted approach, including the DISCLOSE Act, public financing and prohibition of ties between SuperPACs and candidates.
“We need a combination of disclosure and limits on contributions to prevent legally buying results,” he said. Democracy 21 also pursues legal challenges, including a successful lawsuit over regulations the FEC had not enforced and calls for the Internal Revenue Service to investigate groups that abuse nonprofit status through political involvement.
And Wertheimer’s group is trying to regenerate the public financing system that Obama and Romney bypassed. He proposes a system that “empowers citizens through matching contributions” — $200 in private money matched by $800 in public money, for example.
Are Any of These Changes Likely to Happen?
Blair Bowie of the U.S. Public Interest Research Group sees public dissatisfaction with the money in politics as “a great opportunity for engagement.” She believes rank-and-file members of both political parties support change but have little faith that Congress will rein in the excess on its own.
Lindsay Mark Lewis at the Progressive Policy Institute expects “a pretty bad reaction this fall around the money” and the negative ads. He doesn’t think the new Congress will scrap McCain-Feingold, but he expects it will move against SuperPACs.
“I could see even staunch Republicans seeing that the game is out of control,” he added.
Lawrence Lessig, the Harvard law professor, writes that mobilizing the public to demand change is easier when corruption is obvious (personal gain) than when it’s subtle (systemic). But he is trying to mobilize such a movement and has spelled out strategies that, over time, could lead to profound change.
Fred Wertheimer of Democracy 21 expects a national movement for change to emerge.
“I think we’re going to have a documented case of a system out of control,” he said. “We need to organize citizens for action. We need editorial support. We need to get Republicans back to the point where they support campaign finance reform.
“This issue goes to the core of how power is exercised in this country,” he said, “to the core of democracy.”