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.