Aug 13, 2014 | By Carolyn Burstein, NETWORK Communications Fellow
(This is the second in a two-part series addressing the question of the title. This article addresses the issue of "big money" in our elections).
Two major Supreme Court decisions – Citizens United v. Federal Election Commission (FEC) issued in January 2010 and McCutcheon v. FEC issued in April 2014 – allowed unfettered amounts of money to dominate our electoral processes. The first decision allowed businesses and unions to spend unlimited and undisclosed amounts of money on political activity, which led to the creation of super “political action committees” (PACs) and nonprofit advocacy groups that engage in political campaigns. All these groups must operate separately from the candidate who is running for office. In the years since Citizens United, Super PACs have become a regular part of the political landscape and have become notorious for their highly negative ads, excoriating the opposition.
The second decision, rendered this past year – McCutcheon v. FEC – struck down the overall limits on how much individuals can donate to all candidates and political parties. In both cases, the Supreme Court (in its majority opinions) removed previous barriers to campaign contributions that they said violated a person's First Amendment right to free speech.
The practical result of both of these Supreme Court rulings is to "open the floodgates to unbounded spending that would undermine what remains of campaign finance reform," as Justice Stephen Breyer wrote in his minority opinion in the McCutcheon case. More importantly, these rulings are undermining our participative democracy. As Breyer says somewhat later in his opinion, "Where enough money calls the tune, the general public will not be heard ... and a cynical public can lose interest in political participation altogether." These rulings erode confidence in our political system.
Many believe that the flow of "big money" into our political system has reached crisis proportions. Let's enumerate its unpleasant effects:
These unattractive effects of "big money" in elections have not deterred its active role in the contests underway in the 2014 midterms. Eric Pianin, writing in the Fiscal Times on August 8, says that with control of the House and Senate at stake, this forthcoming election is shaping up as one of the hardest hitting and costliest on record, with outside money pouring into all competitive contests. Voters are being targeted by political strategists who get their funding from a "new breed of plutocrats and kingmakers whose names they've never heard." Outside groups are working hard to determine the outcome of elections that used to be controlled by voters, unless these voters are well-informed and are able to distinguish between propaganda and truth, often a difficult and time-consuming task.
Super PACs have become a virtual requirement in competitive congressional elections, according to Saul Anunzis, formerly the chairman of the Michigan Republican Party. As he told the Washington Post recently, "Anybody giving advice to campaigns that did not recommend super PACs as part of the strategy mix would be committing political malpractice."
According to the Center for Responsive Politics (stated in an editorial in the New York Times on August 3), there are at least 64 super PACs dedicated to individual candidates in the 2014 mid-term elections, and they have already spent more than $21 million on ads, polls and robocalls. Two years ago there were just 42. Nearly all of this year's Senate races include a super PAC that is spending unlimited donations from unnamed sources. But in many cases, the candidates have close ties to the donors and know exactly who they are. These candidates also know the people who decide how to spend the money.
Under these circumstances, it is hard to avoid the appearance of "corruption." Critics accuse regulators of having a generally lax enforcement stance, especially when it pertains to many super PACs funded by independent advocacy groups. Elisabeth MacNamara, president of the League of Women Voters of the U.S., claims that PAC systems have now become a huge funnel for corrupting elected officials across the country, as she told CNN in April 2014.
As long as candidates from both parties are benefiting from super PAC money, there is little hope of congressional relief. So what are some responses to the issue? As one would expect, they differ.
First, Lawrence Lessig, a professor at Harvard Law School with close ties to Silicon Valley and to Mark McKinnon, a former advisor to President George W. Bush, recently formed "Mayday," a super PAC, to fight money with money. Mayday began a $12-million advertising campaign on July 30 to help elect candidates of both parties who support efforts to diminish the influence of big donors.
One of Mayday's efforts is to advocate for more giving by small donors, hoping in this way to dilute the influence of "big money," taking a leaf from President Obama's fundraising tactics of 2008. Another effort is underway in Congress, where Mayday allies are urging lawmakers to support legislation sponsored by Representative John Sarbanes (D-MD-03) called the "Government by the People Act" or that of Representative Tom Petri (R-WI-06) called the "Citizen Involvement in Campaigns Act." Both measures offer tax credits or vouchers to people who make small donations. However, neither of these bills made any headway before the congressional summer recess. "What Mayday wants is to elevate the issue overall as one of the most important issues in the election," says one ardent supporter.
The Mayday PAC will be initiated through a buy of about $4 million in ads in Iowa and New Hampshire, where voters tend to be more receptive to the anti-big money message, advertising is cheaper than in many parts of the country, and any victories will be noticed especially by presidential aspirants.
A second response to the gusher of unlimited money into election campaigns is through a proposed Constitutional Amendment to Restore Democracy to the American People (SJRes.19) sponsored by Senator Tom Udall (D-CO) and supported by many Democratic lawmakers and reform groups. The constitutional amendment gives Congress and the states the authority to regulate and limit the raising and spending of money on elections and, among other things, attempts to advance the fundamental principle of equality for all. The Senate plans to vote on the amendment before the end of 2014, but this effort has little support among Republicans. If it is supported in both the House (highly problematic) and the Senate (not likely), then it faces the uphill battle of passage throughout the states.
For those who have surrendered in the fight to achieve any legislative triumph or who won't "embrace the irony" (as Lessig calls Mayday) and don't support "fighting money with money," or are weary of the series of defeats they have suffered since Citizens United, a third effort that stops short of reversing the trend of super PACs is to bring greater transparency to the entire fundraising enterprise. These advocates (e.g. Common Cause, the Sunlight Foundation, Campaign Legal Center) are calling on the Federal Communications Commission (FCC) to require satellite and cable broadcasters to disclose who is paying for the political ads that they air and how much they're spending, similar to rules that as of July 1 apply to individual TV stations. The whole idea behind this effort is to give Americans access to information about the identity of the people or group(s) bankrolling the ad campaign. An August 1article from "Moyers and Company" outlined this transparency effort and further steps reformers would like to see the FCC undertake.
Even though none of the preceding proposals sounds very optimistic and we are concerned that the role of "big money" in elections heightens the tendency toward plutocracy and inequality with their corrupting powers, it is important to remember that concerned citizens of both parties as well as good government groups are pushing toward a restructure of financing elections and will hopefully succeed before long.
It is certainly possible that the failures of any proposals mentioned could bolster efforts long underway on public financing of elections. As I've noted in a previous blog ("McCutcheon v. FEC: A Damaging Supreme Court Decision"), more than 10 states have already successfully experimented with publicly-funded elections at the local level. Whatever the chosen method, we must work to change the current system of funding elections before we completely lose what's left of our democracy. We have often said that NETWORK believes in a world of economic justice; now we have an added reason to be involved in achieving it.