This is why I am carrying MN house file 276." -MN Representative Raymond Dehn
The consequences of ‘Citizens United’
01/20/14 04:00
AM—UPDATED 01/20/14 07:55 AM
Four years
ago this week, the Supreme Court’s Citizens United decision allowed unlimited
political spending by corporations and unions, leading to an explosion of
outside money in elections. Now, those invested in the symbiotic relationship
between politicians and their biggest donors are using the aftermath of
Citizens United as an excuse to weaken campaign finance laws even further. For
the sake of our democracy, we can’t let that happen.
Citizens
United depended on faulty logic about independent expenditures. The Court
reasoned that while a direct contribution can corrupt because the candidate can
spend it as he or she wishes, outside spending cannot corrupt because the
candidate ostensibly has no control over how it is spent. But this ignored
common sense. Clearly, a nine-figure expenditure supporting a candidate’s
election can buy a lot of political influence if and when the candidate makes
it into office.
Certainly,
big donors seem to believe their donations can buy influence. Thanks to
Citizens United, outside spending skyrocketed in 2012 to more than $1 billion,
including $400 million from dark money groups that don’t disclose their donors.
Legislators
targeted by the outside negative ads are concerned. Some have used the specter
of massive outside spending to argue that they need more direct contributions
for their re-election campaigns in order to ‘weaken’ the influence of outside
money. Eight states
have increased the dollar amounts that donors can give directly to candidates,
and similar legislation has advanced in several others. Alabama eliminated its
$500 limit on corporate donations, allowing
corporations to give unlimited amounts of money directly to
candidates. Limits in other states, like Florida,
are now several times higher.
Now the
same justices whose Citizens United ruling created the outside expenditure
quandary are arguing that it necessitates weakening limits on direct
contributions. In oral argument for McCutcheon v. FEC, a case challenging
limits on the total amount individuals can donate directly to all federal
candidates, the court’s conservative justices seem to contradict the reasoning
they used to justify their 2010 decision. Justice Scalia said
there is no real distinction between the gratitude a candidate would feel
toward a contributor on the one hand and a major independent spender on the
other. He added, “The thing is, you can’t give [unlimited contributions] to the
Republican Party or the Democratic Party, but you can start your own PAC… . I’m
not sure that that’s a benefit to our political system.”
In any
case, the idea that raising contribution limits will take the moxie out of
outside spending is ludicrous. As long as it is possible to spend secretly and
without accountability, there will be moneyed interests who do so. Dark money
groups, with elaborate
networks to spread money while concealing its
source, encourage donations by promising to never reveal donors’
names. Big donors “double dip”
by giving the maximum contribution to a candidate and then giving millions to a
Super PAC dedicated to the same candidate.
One of the
biggest independent spenders is conservative Super PAC American Crossroads,
along with its affiliated dark money group
Crossroads GPS. In early 2012 the Super PAC, which is required to
report its donors, raised only 20% of
the affiliated organizations’ donations. GPS, the dark money arm permitted to
keep its donors’ identities secret, raised the other 80%. The same pattern–donors
preferring dark money’s anonymity–holds for liberal dark money group Patriot
Majority USA and its affiliated Super PAC. Raising contribution limits, then,
is unlikely to eliminate or significantly slow outside spending on political
campaigns. It would likely lead instead to donors taking advantage of the
higher limits while continuing their independent spending. Higher limits will
only increase the ability of moneyed interests to dictate policy, while further
limiting average voters’ influence over their elected officials.
The best
way to protect democracy from the post-Citizens United torrent of independent
spending is comprehensive reforms that empower candidates to run without
relying on the biggest donors. That starts with maintaining reasonable contribution
limits. But the most powerful reform would be a system of public financing
that matches small donations. This would reward candidates who build broad
support among the mass of average voters, rather than candidates who depend on
big, special interest money.
Four years
after Citizens United, one thing is clear: the answer to big money in elections
is not more big money. It’s finding a way to put voters back in charge of our
democracy.
Ian
Vandewalker serves as counsel for the Democracy Program at the Brennan Center
for Justice at NYU School of Law.
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