Democracy is drowning in a sea of dark money
The United States Supreme Court’s decision in ‘Citizens United’ five years ago left the nation’s campaign finance system in shambles and our constitutional system of representative government dangerously undermined.
‘Citizens United’ threw out a century of national policy and overturned decades of Supreme Court precedent to strike down the prohibition on corporate expenditures in federal elections. This set the stage for the creation of Super PACs and the return to federal elections of unlimited individual contributions, corporate funds and secret money.
These kinds of funds were at the heart of the Watergate corruption scandals of the 1970s — the worst campaign-finance malfeasance of the last century. The crimes included:
ITT Corp. gave $400,000 to finance the 1972 Republican Convention. Soon after, President Richard M. Nixon personally intervened to have the Justice Department settle an antitrust case in ITT’s favor.
The dairy industry gave $2 million to the Nixon re-election campaign. Soon after, Nixon personally intervened to order the Agriculture Department to increase dairy price supports.
Nixon’s personal attorney went to jail for the explicit exchange of an ambassadorship for a large contribution.
Twenty corporations were criminally convicted of violating campaign-finance laws.
History makes clear that unlimited contributions and secret money are a formula for corruption.
The Supreme Court recognised this in its landmark ‘Buckley’ decision in 1976, which upheld contribution limits. The court ruled that corruption is ‘inherent in a system permitting unlimited financial contributions.’
‘Citizens United,’ however, returned unlimited Watergate-style political money to US elections.
By the end of 2012, just two years after the ruling, Super PACs, nonprofit organisations and other groups making independent expenditures had spent more than a billion dollars in unlimited contributions in the presidential and congressional elections, including more than $300 million in secret contributions.
By the end of 2014, the combined contributions of the 100 biggest donors to outside groups that spent money in congressional races exceeded the total amount given to these races by all Americans who gave $200 or less, according to a ‘Politico’ analysis.
The average contribution from these top donors: $3.3 million per donor.
The already endangered ability of ordinary Americans to be fairly represented in Washington has rapidly diminished in the Citizens United era. Wealthy Americans, corporations and other well-financed interests now have new opportunities to use political money to gain even greater influence over federal officeholders and government decisions.
This problem grew even worse in late 2014, during the closing days of the last Congress. Senate Majority Leader Harry Reid (D-Nev.) entered into a Faustian bargain with House Speaker John Boehner (R-Ohio) and Senate Republican Leader Mitch McConnell (R-Ky.). They sneaked a last-minute provision into the 2014 Omnibus Appropriations Bill that dramatically increases contribution limits to a national party to $777,600 per person per year—an eight-fold hike.
It goes without saying that only multimillionaires and billionaires can take advantage of this.
In 2002, federal officeholders were banned from soliciting, and donors were banned from giving large contributions to, the national parties because they created widespread opportunities for corruption - for the buying and selling of government influence and decisions.
Former federal officeholders provided affidavits in the case of ‘McConnell v. Federal Election Commission’ supporting these restrictions on large party contributions, known as soft money. The Supreme Court in 2003 upheld the restrictions in McConnell.
Here’s an example of the affidavits:
Former Republican Senate Whip Alan Simpson stated:
‘I have seen firsthand how the current campaign-financing system prostitutes ideas and ideals, demeans democracy and debases debates. Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial lawyers to Democrats stopped tort reform. Big labour and big business use large soft-money donations to corrupt the system to the detriment of the little guy.
The ‘McConnell’ decision was consistent with almost 40 years of Supreme Court precedent - where the court generally upheld the constitutionality of campaign-finance laws.
This changed, however, with the appointments to the Supreme Court of Chief Justice John Roberts in 2005 and Justice Samuel Alito in 2006. These appointments created a 5-to-4 ideological majority that has consistently supported plaintiffs hostile to campaign-finance laws.
‘Citizens United’ has allowed millionaires, billionaires, corporations and other well-financed special-interest groups to exercise disproportionate influence over our elections and a corrupting influence over government decisions.
The decision, and its aftermath, fundamentally undermined the basic constitutional principle of one person, one vote. It will go down as one of the worst Supreme Court decisions ever.
It is an ideologically driven decision that ignored the nation’s history, the court’s previous decisions and the need to protect America’s representative system of government against corruption - a need recognised by the Founding Fathers in their expressed concerns about the dangers of corruption to the new country they were forming.
‘Citizens United’ will not stand the test of time. When the court’s ideological makeup changes, the ruling is bound to be overturned.
As long as the decision governs, however, the flow of huge contributions into US elections cannot be prevented. Yet some key legislative reforms can be made - even within this constricted constitutional framework.
Repairing the presidential public financing system and establishing a small-donor public matching-funds system for congressional races;
Disclosure requirements to end secret money;
Ending individual candidate Super PACs by strengthening rules prohibiting coordination between candidates and outside groups;
Repealing the new, exorbitant party-contribution limits;
Banning lobbyists from bundling contributions, and
Creating a new, effective campaign-finance enforcement agency.
Some of these changes are fundamental, others incremental. All need to be pursued.
Major technological breakthroughs also could dramatically increase the role of small donors in financing our elections, which would greatly diminish the importance of influence-seeking big money. The use of the Internet, social media, smartphones and other new technologies to raise and give contributions online can revolutionise the way our campaigns are financed.
Given the current divisive Congress—controlled by Republican leaders who oppose campaign finance reforms—the fight for legislative reforms will take time. Remember the words of the founder of the modern campaign-finance reform movement, John Gardner: ‘Reform is not for the short-winded.’
National polls show the American people overwhelmingly reject the role that political money plays in Washington and recognise how it overrides their interests. Their concerns are one reason for Congress’ historically low ratings.
But a broad-based national reform movement is building. Its goal is to convert citizen concerns into sustained citizen action to repair our campaign-finance laws. Similar reform efforts have worked in the past and will work again in the future.
This fight goes forward.