By Sonali Kolhatkar
If the Supreme Court’s 2010 Citizens United ruling was not devastating enough for American democracy, a new case could wipe away any remaining vestige of election integrity. The nation’s highest court heard oral arguments in McCutcheon v. Federal Election Commission this month. If the court rules in favor of Alabama mining CEO Shaun McCutcheon, rich Americans could make unlimited amounts of campaign contributions directly to political candidates and parties. Currently, the federal limit for individual contributions is $123,000 over two years, a figure that the majority of Americans don’t even earn as basic income during that time span.
The conservative National Review recently published a critique of what author Ammon Simon called “the Left’s fear tactics” over sounding the alarm on this new potential deregulation of money in elections. Simon begins by making the case that money does not in fact influence elections, citing several questionable studies that, according to him, prove “the evidence just doesn’t lend itself to the ‘legalized corruption’ theme.”
But he then contradictorily laments “the misguided belief that we can regulate away money’s influence over the political system.” The conservative admiringly points out that, “Historically, campaign-finance laws have always been undermined by innovative workarounds.”
Simon’s argument therefore could be summarized thus: Rich people should be able to influence democracy simply because they are rich, but don’t worry, their money doesn’t have any effect. But if you do try to curb the influence they say they don’t have they will simply acquire it by other means so just give up trying.
In an interview about McCutcheon v. FEC, University of Texas journalism professor Robert Jensen told me, “The argument that it’s a violation of my free speech rights if the government restricts in any way the way I spend my money on campaigns has a kind of curious logic to it. There’s a kernel of truth to it, that when we spend money we’re engaging in a form of speech. But when you don’t take the real world into consideration, you don’t realize the incredible disparities in wealth will undermine anything approaching a democratic political sphere. We need to reframe this not as a ‘free speech’ case but as a ‘big money’ case.”
That the rich influence elections with their money is as obvious to most of us as the fact that rich people game the justice system by being able to hire the best lawyers, or that rich people are healthier because they can buy the best food and health care.
Many examples of big money’s influence on politics abound, one of which is California’s attempt at labeling genetically modified organisms last year. While Proposition 37 had the backing of 60 percent of voters, according to polls taken early in the election season, the last-minute infusion of huge sums of money by corporate food conglomerates like Monsanto, PepsiCo and Hershey’s shifted the balance of voters who were originally in favor of the proposition.
By the time of the election, the “No on 37” vote had gathered $45 million to spend on advertising, while the “Yes” campaign had brought in only about $7.3 million. The result should come as no surprise. With a 53 to 47 percent margin, California voters walked away from an opportunity to become the first state in the nation to label GMOs.
Leading media reformist and Nation magazine correspondent John Nichols has co-authored a new book with his longtime colleague Bob McChesney called “Dollarocracy: How the Money and Media Election Complex Is Destroying America.” In an interview about the book, Nichols told me, “More than half a billion dollars was spent on California’s initiatives [in 2012] and so this state saw ‘Dollarocracy’ on steroids. Money flowed into this state and it defined elections.”
Another example of the corrupting influence of money in California’s elections—even before the Citizens United decision—that had a greater human impact, particularly on poor communities of color, was the failure of a 2004 ballot measure to amend the state’s notorious Three Strikes law. Proposition 66, if passed, would have eased some of the harshest sentencing aspects of the original 1994 law that sentenced third-time felons to a minimum of 25 years to life, no matter how minor that third infraction. The law affects black and brown communities disproportionately. Six months before the election, polls found that 76 percent of likely voters favored the amendment, but after then-Gov. Arnold Schwarzenegger spent $2 million of his own money fighting the measure, opinions shifted and the measure narrowly lost.
In “Dollarocracy,” Nichols and McChesney write about the original framework that the Citizens United ruling was based on, authored by the late conservative Supreme Court Justice Lewis Powell Jr. McChesney explained to me that Powell, when he was a leading corporate attorney representing the tobacco industry, was commissioned by the Chamber of Commerce to write a short memo on “what business and wealthy Americans can do to take back the government.” He elaborated, “Powell laid out a game plan, a battle plan of strategy and tactics of how the government could be brought back under business control.” Powell’s fantasy of campaign finance deregulation was eventually taken up by Justice John Roberts, who then led the court in 2010 to the Citizens United decision.
Citizens United does not allow corporations and rich individuals to contribute directly to campaigns—it requires third parties like political action committees to accept the donations. But if the Supreme Court rules in favor of deregulation in the latest case of McCutcheon v. FEC, even that last, weak barrier will be cast aside. “The reason why rich people are interested in this,” said McChesney, “is that those third party groups that they can now give unlimited amounts to, have to pay a higher rate for the TV ads than candidates. Candidates are always at the lowest rate on the rate card. So they [the rich] can get more bang for their buck if they give directly to the candidate’s campaign.”
Nichols put it into perspective, saying, “even if the court doesn’t go with McCutcheon, this system is such Swiss cheese now, that money can flow in. They’re just going to have to pay a little more. For the super-rich donors, we’re now at the cleanup stage. They’re like, ‘Oh, this is a little inconvenient to us. Can we just write the big check without having to go through all these different routes?’ ”
In other words, said McChesney, “This is basically more open season for rich people to buy government and to buy democracy.”
One of the most insidious effects of money flooding our political system is the turnoff factor. As people are exposed to greater and greater numbers of political ads, they are less likely to vote at all rather than to change their vote. Nichols explained in an example, “Let’s say you’re a militant feminist and you say ‘I’m going to back this candidate.’ The other side puts on ads that say ‘that candidate has been horrible in all these ways.’ You don’t switch over to the right-wing candidate. You stand down. The whole point of the negative ads is to make people who care, people who actually are interested, step back and say ‘a pox on all your houses.’ ” Nichols added, “Negative political ads are a form of voter suppression. They effectively tell people ‘don’t vote.’ ”
In fact, voter turnout in 2012, which was the first big test of the Citizens United decision, was less than 60 percent. Fewer people voted than in the last two presidential elections in 2008 and 2004.
Sadly it is not just conservatives on the Supreme Court who want the dollar to dominate elections. Having done his damage with the government shutdown over Obamacare, Texas Republican Sen. Ted Cruz wasted no time in turning his sights to a new target this month: the nomination of Tom Wheeler as head of the Federal Communications Commission. Wheeler is no progressive—he is a former lobbyist and venture capitalist—but Cruz’s opposition to Wheeler is based on his insistence that any future FCC chair must refuse to enforce laws requiring disclosure of political ad funders. Currently, one of the few ways in which ordinary Americans can judge the veracity of a political ad is by examining who has funded the ad. Cruz would like to see even that democratic right taken away from the public.
Not surprisingly, National Review author Simon’s solution to the corrupting influence of money in politics mirrors what conservatives like Sen. Cruz and Justice Roberts want. His “answer is to limit government, not free speech.” And that is quite convenient because after all, conservative ideological opposition to “big government” is based on a highly skewed worldview that ordinary Americans who benefit from government via so-called entitlements ought to fend for themselves, even if they are drawing from programs they fund through taxes. Simon quotes the Cato Institute’s Ilya Shapiro, whose logic is stunningly perverse: “Shrink the size of government and its intrusions in people’s lives and you’ll shrink the amount people will spend trying to get their piece of the pie.” In other words, once rich Americans achieve their goal of cutting vital programs, they won’t need to spend as much on campaigns. And voilà, our problems with campaign finance regulations will be irrelevant.
None but the very tiniest fraction of a percent of Americans have the kind of disposable income that McCutcheon, the Koch brothers, Sheldon Adelson and their ilk have to pervert elections. And most ordinary Americans recognize that. As Jensen pointed out to me, “This is one issue where the public is pretty clear, that flooding the political system with money in even more direct ways is not good for democracy.”
A post-election poll in November found that more than 60 percent of all voters, both Democrat and Republican, are concerned about the level of money in politics. An incredible 85 percent want the names of political ad funders disclosed. To that end, a number of progressive organizations are working to overturn the Citizens United decision by building a movement to amend the Constitution. More than a dozen states, including California, and many cities and municipalities have passed resolutions in support of such an amendment. The all-important question is whether a mass movement will emerge strong enough to force a reversal of campaign deregulation and take on America’s rich in the battle over elections, and ultimately, democracy.