Last July, presidential candidates and their supporting super PACs filed their first contribution reports. The results should chill the blood of anyone who cares about participatory democracy in America. Nearly $400 million has already been donated to presidential campaigns or, more frequently, to super PACs supporting those campaigns.
According to analyses by Politico and The New York Times, the vast majority of this money came from fewer than 200 families or corporations. Sixty-seven of these were billionaires giving over $1 million each – which is three times more than the combined donations of the smallest 508,000 contributors. This is not democracy where the people rule, or a republic where people freely choose their representatives, but the makings of an oligarchy where a few people with similar interests dominate the nation.
How did we get here? It began with laws passed in the 1970s aimed at preventing the very distortions we have ended up with. After fundraising abuses by the Nixon campaign, Congress enacted the Federal Election Campaign Act (FECA), setting severe limits on how much people could contribute, or spend on their own quests for office. The idea was to level the political playing field by limiting, not eliminating, the distortion that money could cause.
FECA was quickly challenged, and in the 1976 case of Buckley v. Valeo, the Supreme Court struck down limits on how much money people could spend on themselves in politics, arguing that this violated the free speech clause of the Constitution’s First Amendment. The court argued that the amendment’s purpose is to promote the freest, fullest, most unfettered exchange of political ideas possible because only this allows people to cast informed votes. Even if some people could spend more than others, the court did not feel the distortion was severe enough to warrant limitation.
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This reasoning was used again in Citizens United v. FEC (2010) to eliminate nearly all of the new restrictions on contributions enacted in 2002 by a bipartisan Congress. Now people, corporations, and labor unions (the latter two categories are “people” under the law) can spend all the money they want to spread all the political speech they want, even speech directly endorsing or attacking candidates, as long as it is not specifically coordinated with any candidate’s campaign. And that is no restriction at all. By allowing corporations and unions to contribute without limits, the court effectively nullified our oldest campaign finance restrictions. The 1907 Tillman Act forbade corporations from contributing directly to campaigns, and the 1947 Taft-Hartley Act forbade unions from doing the same. Now they can simply give to somebody’s super PAC without limits to help one candidate for the presidency while attacking others, just because their spending is protected free speech.
The court majority in Citizens United grounded their argument in democratic principles, but it is hard to see how their principles square with reality. They argued that contribution limits essentially take speech from some while giving it to others. But by allowing everyone to freely spend and speak, the court enabled the very result it claimed to be preventing. Media are a business, charging as much for advertising as super PACs are willing to spend. Citizens unable to spend more than $200 thus cannot advertise on television, radio or even in newspapers and lose their speaking opportunities. Contributors able to drop a few hundred thousand dollars can buy all of the speech they want. So much for the free and unfettered exchange of ideas in politics. The court also cites James Madison’s famous Federalist Paper No. 10 endorsing competition among factions as the best way to limit power and preserve liberty. But if the vast majority of Americans are priced out of the market, there is no competition and the opinions of the wealthiest few dominate political debate.
What is perhaps most disturbing is that in other ways the court has upheld equality in political participation, such as by enforcing the egalitarian principle of “one person, one vote” when it comes to drawing electoral districts. There is no equality, however, in a society where one person’s voice can be so loud that it drowns out everybody else. The only thing that can match a million-dollar voice is another million-dollar voice, but how different can the interests of two millionaires be? How free and open an exchange of ideas can we have when only they get to speak?
The court has at least offered one small hope for mitigating this distortion. In both Buckley and Citizens United, it affirmed Congress’s right to regulate campaign speech to prevent the appearance of corruption, even if it cannot ban dollar-based speech. Common sense suggests that people who donate tens of thousands expect a return, so the system appears plenty corrupt and thus ripe for congressional action. All we need is for Congress to show the backbone it did in 2002 and stand up to the small circle of well-heeled donors dominating American politics today and regulate it to the extent the court will allow.
Thomas Holyoke is a professor of political science at Fresno State and author of the new e-book “The Ethical Lobbyist.”