In Citizens United, the Supreme Court gave the green light to unlimited money in our elections. We’ve witnessed its impact in federal elections, with billionaires sponsoring candidates like racehorses. But at the state and local level the decision has had a truly transformative effect.
It turns out, you don’t have to be a Koch brother to be a kingmaker.
From Montana, where a statehouse seat can be had for as little as $20,000, to San Francisco, where the mayoralty can be won with just over $1 million in outside support, big spenders are finding cheaper and stronger influence by narrowing their sights. As investor Rex Sinquefield, one of Missouri’s largest political donors recently put it, at the local level “you will be amazed how much influence you can have.”That influence comes not just from the amounts of money, but from how it’s spent. While the court in Citizens United said that independent spending could not lead to corruption, in fact newly-unleashed outside spenders are working “hand in glove,” as one state regulator told us, with candidates at every level.
Much of the growth in outside spending since 2010 has come from groups dedicated to the election of one candidate, often helmed by the candidate’s former advisers and associates. These groups can solicit unlimited donations. Since former associates have intimate knowledge of campaign strategies and donors, candidates can have special confidence in these groups’ work.
Though candidate-specific groups have commonly been super PACs, which must disclose donors under federal and many states’ laws, so-called “dark money” groups have begun to take on the role. We can’t know all of the troubling conflicts of interest that might arise for politicians in these scenarios, but a look at what is happening in the states gives us a taste.
For example, in a scandal one news report called a “nightmare scenario” of corruption, former Utah Attorney General John Swallow used “independent” groups to orchestrate advertising for his 2012 campaign from payday loan companies, which he had in exchange promised to regulate lightly, according to an investigation by Utah’s legislature. Swallow’s campaign staff had created a web of benignly named groups, like the Proper Role of Government Education Association, to conceal more than $450,000 in spending by the lenders.
Not all of this collaboration has been secretive. Increasingly, candidates directly solicit huge sums for “independent” groups that support them. Florida Governor Rick Scott has raked in millions for a group, Let’s Get to Work, dedicated to his reelection this year—and whose name is also a Scott campaign slogan. Florida caps direct contributions to candidates at $3,000; Let’s Get to Work has raised over $28 million. The group has spent almost $11 million on pro-Scott ads—more at the state level than any outside group this year other than the Republican Governors Association, according to the Center for Public Integrity. Scott’s rival, Charlie Crist, is also working closely with outside groups, helping to raise more than $14.6 million.Candidates are also collaborating with outside groups on messaging. Michigan gubernatorial candidate Mark Schauer has appeared in at least four spots paid for by the Democratic Governors Association. Schauer opted to participate in the state’s public campaign financing program and thus faces caps on his own fundraising, but the DGA, which has reportedly reserved $6 million in Michigan airtime this fall, does not.
While dozens of these instances of apparent collaboration in state and local campaigns across the country have gone unchecked, some jurisdictions have started to act. Minnesota recently implemented some of the nation’s toughest anti-coordination policies, prohibiting candidates from fundraising for super PACs that support them and treating candidate appearances in outside advertising as coordination.
The most comprehensive anti-coordination proposal is a federal one. Introduced this September by U.S. Reps. David Price and Chris Van Hollen, the bill would make outside spending to promote a candidate that is “not made entirely independently of the candidate,” considered coordinated and thus subject to limits. Unlimited spenders would be forbidden from “more than incidental communications with the candidate.” A candidate’s former staffer would have to wait longer before joining a super PAC supporting the candidate.
Though Congress is unlikely to pass the bill in the near future, the proposal provides a model for states seeking to limit the corrupting influence of deep-pocketed donors and corporations.
The outsize influence of wealth in our politics causes problems of representation greater than the toughest coordination rules can fix. Big money, even if uncoordinated, wields too much power. Yet strong deterrence of coordination is essential to preserve the regulations we have, such as direct contribution limits and requirements to publicly disclose connected spending. While we work to expand the Supreme Court’s conception of a constitutional democracy, we must work hard to make the “independent” in independent spending mean something real.
Chisun Lee is counsel at the Brennan Center for Justice at NYU School of Law. Brent Ferguson is counsel in the Brennan Center’s Democracy program, where he works on the Money in Politics team.