This post is written by Associate Editor Jennifer Moore. Opinions and views expressed herein are those of the writer alone.
“We can have democracy in this country or we can have great wealth concentrated in the hands of a few, but we cannot have both.”
-Justice Louis D. Brandeis-
Campaign season is upon us and news outlets are reporting on how many millions of dollars in campaign contributions small groups of wealthy donors’ plan on spending to buy the candidates of their choosing. A Washington Post article reports that the Koch brothers held their semi-annual meeting in Indian Wells, California with 550 ultra-wealthy donors to formulate plans that include the spending of $300 million-$400 million dollars on the 2018 midterms.[i] This spending is 60% more than the network of donors spent in the 2016 election.[ii] And this group of politically active, wealthy donors is but one of many groups that intend to spend enormous amounts of cash on the upcoming 2018 mid-term elections. Excessive amounts of money that flow into national party campaign coffers and political action committees (or PAC’s) result in a growing disparity of influence in legislative policy outcomes that strike at the core of our democratic ideals. It’s time to reassess the principle that money equals speech. And it’s time to question whether any limits on political spending that do not trigger a narrow definition of quid pro quo corruption violate the First Amendment. And it’s time to enact strong, meaningful legislation that regulates all forms of political spending. Regulations need to address not only those contributions that flow into national political parties and registered PAC’s, but also those contributions that flow through streams of dark money.
Ever since Buckley v. Valeo[iii], almost 41 years ago, the Court has tried to strike a balance between the freedom of people to spend money in political campaigns without restricting their First Amendment rights to free speech and the need for restrictions that prevent corruption of elected offices by wealthy donors. According to the Supreme Court, the fundamental presumption of legislation determining limits on political spending assumes that it is permissible for Congress to pass legislation that deters or prevents the corruption of the political process. The presumption also holds that it is impermissible for Congress to pass legislation limiting political spending that does not have the appearance of quid pro quo corruption.[iv]
By narrowly defining corruption as only a quid pro quo arrangement between the candidates and their wealthy donors, as the majority opinion of the Court affirms in Citizens United[v] and McCutcheon,[vi] the Court dismisses the corrupting connection between the enormous amounts of campaign dollars lavished on candidates or spent on behalf of a candidate’s election through political action committees (PAC’s) and the outsized influence those donors have on adopted policies. It has resulted in a government that is far less responsive to the majority of Americans and far more likely to cater to the policy desires of wealthy donors. Even though it is within the power of the Court to broaden the definitions of corruption and the appearance of corruption, the Court has declined to do so. Instead, the Court adheres to the idea that Justice Kennedy put forth in McConnell, that favoritism and influence are not avoidable in representative politics.[vii] He explained that it is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies.[viii] He opined that democracy is premised on responsiveness.”[ix] But the current easing of political spending limits has resulted in responsive democracy for only the wealthy few.
In a study published in 2014, Martin Gilens and Benjamin Page researched theories of influence that different political groups have on US government policy.[x] In their research, a central point that emerged from the research was that economic elites and organized groups representing business interests have substantial impacts on government policy, while mass-based interest groups and average citizens have little or no independent influence.[xi] Generally, the research found that strong support among high-income Americans roughly doubles the probability that a policy will be adopted , while strong support among the middle-class has essentially no effect on policy.[xii] The affluent are better at blocking policies they dislike. When they strongly oppose a policy that the middle class doesn’t strongly oppose, then that policy has only a 4 percent chance of being adopted.[xiii] Many instances exist where high- and middle-income Americans hold similar views on policies, which usually result in a higher probability for both groups to have their preferred policies adopted.[xiv] Gilens and Page call this “democracy by coincidence.”[xv] But this isn’t real democracy at all, it is merely a pale imitation.[xvi]
If the Courts are unwilling to prevent the outsized influence that a few wealthy donors have through stronger limits on campaign spending, then at least the courts could more aggressively insure that public disclosure measures are enforced. The Court in both Citizens[xvii] and McCutcheon[xviii] seemed to rely on disclosure mechanisms as a preventive to any potential corruption and as a way of providing the public with the information they need to stay informed about how the campaign efforts of PAC’s and the candidates are funded. However, a large percentage of the political expenditures in recent election cycles flow through 501(c) organizations. These political nonprofits are under no legal obligation to disclose their donors.[xix] When they choose not to, they are considered Dark Money groups.[xx] Super PACs can also be considered Dark Money groups in certain situations.[xxi] While these organizations are legally required to disclose their donors, they can accept unlimited contributions from political non-profits and “shell” corporations who may not have disclosed their donors, in these cases they are considered dark money groups.[xxii]
Unfortunately, the agency that is solely authorized to regulate federal election campaigns under the Federal Election Campaign Act, the Federal Election Commission (or FEC), has been crippled by deadlock and inaction for many years now. A New York Times article from August 2014 notes that the Commission, which is made up of three Democratic members and three Republican members, has deadlocked on 3-3 votes more than 200 times in the preceding six years.[xxiii] The article goes on to suggest that instead of paralyzing the commission, the 3-to-3 votes have created a rapidly expanding universe of unofficial law, where Republican commissioners have loosened restrictions on candidates and outside groups simply by signaling what standards they are willing to enforce.[xxiv] Through this disfunction, the FEC doesn’t just allow dark money groups to pump millions of dollars into the PACs under the radar. The FEC’s lax oversight of these organizations may have also allowed spending from foreign governments to flow into our elections. A news outlet has reported recently that an ongoing FBI investigation has unearthed Russian oligarch’s contributions to the NRA, an organization that has aggressive participation in elections both federally and in local and state elections.[xxv] While it is illegal to use foreign money to influence federal elections, there is not much oversight at the FEC to guard against this.
Congress could draft legislation that would at the very least bolster the disclosure laws that could shine a light on dark money and other forms of political expenditures, without restricting free speech rights. Instead, a handful of leaders in Congress are quietly, behind the scenes, trying to make it even harder for Americans to discover which wealthy donors are funding the candidates.[xxvi] They have attempted to pass policy riders into important legislation in order to make it harder broaden the avenues for dark money and to make it harder for other government agencies to create rules that require donor disclosure from PAC’s.[xxvii] It appears that many members of Congress are now largely captured legislators, much like government agencies can become captured by the very industries they are meant to police.
These issues specifically center around political speech, not any other kind of speech. As Justice Breyer notes in his dissent in McCutcheon there is a constitutionally necessary “chain of communication” between the people and their representatives.[xxviii] The First Amendment functions to secure these chains of communication between political speech and government action.[xxix] Permitting these enormous political expenditures by a wealthy few drowns out the political speech of those citizens who cannot afford thousands of dollars’ worth of “speech.” As Breyer also states, where enough money calls the tune, the general public will not be heard.[xxx] The Court cannot so willfully continue to turn a blind eye to these corrupting influences on our democracy. The influence these wealthy donors have on our government may not have a quid pro quo connection, but it certainly is corrupting.
[i] James Hohmann & Matea Gold, Koch Network to Spend $300 Million to $400 Million on Politics, Policy in 2018 Cycle, WASH. POST (Jan. 29, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/01/28/koch-network-to-spend-300-million-to-400-million-on-politics-policy-in-2018-cycle/?utm_term=.cc60bab950e9.
[ii] Cailtin Owens, Koch Network to Spend 4300-400 Million on 2018 Midterms, AXIOS, (Jan. 27, 2018). https://www.axios.com/koch-network-to-spend-millions-on-midterms-1d7f5df8-c1b6-40f7-b5e4-7c1bed25062e.html.
[iii] Buckley v. Valeo, 424 U.S. 1 (1976).
[iv] McCutcheon v. FEC, 134 S. Ct. 1434, 1438 (2014).
[v] Citizens United v. FEC, 558 US 310, 356-357 (2010).
[vi] McCutcheon, 134 S. Ct. 1434.
[vii] McConnell, 540 U.S. 93, at 297 (2003).
[x] Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 AM. POL. SCI. ASS’N. 564 (Sept. 2014).
[xi] Id. at 565.
[xii] Martin Gilens & Benjamin I. Page, Critics argued with our analysis of U.S. Political inequality. Here are 5 ways they are wrong, WASH. POST. (May 23, 2016), https://www.washingtonpost.com/news/monkey-cage/wp/2016/05/23/critics-challenge-our-portrait-of-americas-political-inequality-heres-5-ways-they-are-wrong/?utm_term=.874fc1915bb0.
[xvii] Citizens, 558 U.S. 310.
[xviii] McCutcheon, 134 S. Ct. 1434.
[xxiii] Nicholas Confessore, Election Panels Enacts Policies By Not Acting, N.Y. TIMES, Aug. 25, 2014, https://www.nytimes.com/2014/08/26/us/politics/election-panel-enacts-policies-by-not-acting.html.
[xxv] Peter Stone & Greg Gordon, FBI Investigating Whether Russian Money Went to NRA to Help Trump, McCLATCHY, (Jan. 18, 2018), http://www.mcclatchydc.com/news/nation-world/national/article195231139.html).
[xxvi] Ciara Torres- Spelliscy, Congress Could Hardwire Dark Money into Our Democracy, THE HILL (Dec. 4, 2017), http://thehill.com/opinion/campaign/363144-congress-would-hardwire-dark-money-into-our-democracy.
[xxviii] McCutcheon, 134 S.Ct., at 1467.