In his notable dissent in Ligget Co. v Lee (1933), Supreme Court Justice Louis Brandeis noted that corporations “have brought such concentration of economic power that so-called private corporations are sometimes able to dominate the state.” What Brandeis observed in the twentieth century has again become a threat today. Not since the Gilded Age has money in politics become such a corrosive problem. Through the Supreme Court’s labeling of corporations as people and money as speech in its ruling in Citizens United vs. FEC (2010) and again in its reversal of the Montana Supreme Court’s ruling on Montana’s campaign finance laws this past year, the Court has greatly enhanced the influence corporations and unions have on the political process. “Super PACs” with unlimited budgets have arisen, which, though supposedly independent, almost always directly support individual political campaigns, often through undisclosed donors. These organizations seem to defy the very idea of transparent government of the people, by the people, and for the people; in fact, Columbia economist Joseph Stiglitz has referred to the new reality as government “of the 1%, by the 1%, and for the 1%.” Despite substantial public opposition to this ruling, the Court has refused to reverse its ruling.
Super PACs can spend unlimited funds raised from corporations and unions on advertising under the condition that the Super PACs do not directly coordinate with the candidate or candidates they are supporting. Pro-Obama Super PACs, like Priorities USA Action, and pro-Romney Super PACS, like “Restore Our Future,” have been criticized for using the same consultants and messages as the presidential campaigns themselves. But coordination between candidates and Super PACs is not the only flaw of modern campaign finance. Although the Court upheld campaign finance disclosure regulations, the Federal Election Committee has allowed political advertisers like the U.S. Chamber of Commerce and Crossroads GPS to leave the sources of funds undisclosed, so long as donors do not specifically give money for a particular ad. Donors are rarely so specific, leaving many of their names unknown to the public they are influencing. $172 million has come from groups that do not disclose their donors. Fewer than two hundred individuals (0.000063 percent of the population) are responsible for 80 percent of Super PAC funding.
Reasonable citizens have expressed growing concern that the political process will be dominated by a super rich group of donors, the 1 percent of the 1 percent if you will. One of the most visible responses to the influence of corporations on politics has been the launch of the Occupy Wall Street movement, which criticized the influence on Wall Street money on the political system. Jeff Smith, a member of the Occupy Press Team, called our new electoral reality “legalized bribery.” Their advocacy helped bring about greater awareness of the issue, although it is hard to point to any substantive change that has resulted.
One legislative attempt at solving the problem includes the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act, which would have required greater transparency in campaign finance by making organizations spending more than $10,000 on elections reveal their contributors that had donated more than $10,000. A main obstacle in passing this legislation has been Republican filibuster in the Senate. “Campaign finance regulation has become a partisan issue,” said Richard Briffault, the Joseph P. Chamberlain Professor of Legislation at Columbia University Law School. “Earlier this year every single Republican senator voted to support the filibuster against the Disclose Act. Ten or 20 years ago, there was bipartisan support for campaign regulation. In fact, Senator McCain was a leading reform supporter.” Further, the judicial holding from Citizens United prevents the DISCLOSE ACT from limiting the amount corporations can donate to campaigns. The act, as a result, appears unlikely to pass in the future and lead to significant reform.
Considering this political reality, it is necessary to focus on the role of protesters, who can create a social stigma around taking money from particularly questionable institutions, such as banks that have received bailouts or companies competing for government contracts. “Some companies, like those involved in defense contracting, are strongly reliant on government decisions, and therefore more likely to donate and make connections with government officials,” explained Professor Briffault. Targeting these corporations can be accomplished through more specific slogans, signs, and other propaganda highlighting the role of these particular corporations. If a political environment can be created where taking potentially “tainted” donations is “electoral suicide,” the relevance of Citizens United could be partially reduced.
Further, perhaps the broadest way of reforming campaign finance would be creating a more robust public financing option for candidates. Barack Obama chose to opt out of public financing in 2008, which allowed him to raise absurd amounts of money to win the election. This set a dangerous precedent: Neither major party candidate this year will use the public financing system that was meant to prevent the implicit corruption inherent in taking massive political donations. A new public financing system must be attractive enough that candidates will overcome the temptation of private financing.
Professor Briffault believes the current presidential public financing system provides an “artificially low” amount of money and that a new system “must have much more money put into it.” Briffault proposes a system similar to some state and city systems, like New York City’s, in which small donations, such as $100, would be matched on a 4 or 5 or 6 to 1 basis, making large donations less important. The criteria for what constitutes a “small donation” would vary for different kinds of elections.
In order to fundamentally reform campaign finance, a constitutional amendment containing campaign finance regulations may better serve the overall purpose of reducing corporate influence on government. However, a constitutional amendment unfortunately appears at this time to be extremely unlikely. Passing a constitutional amendment is an extremely difficult and time-consuming process, which is why there have only been 17 amendments since the Bill of Rights. Still, an amendment would be by far the best means of channeling populist anger into actual change, even if this change requires years of concentrated effort.
Our best hope for a solution appears to be a combination of clever legislation, reformed public financing, and increased public awareness of the issue by popular protest movements like Occupy Wall Street. A combination of these potential solutions may eventually culminate in either a reversal of the ruling or a constitutional amendment in opposition to it. The Supreme Court has failed in its duty to safeguard our constitutional democracy from corporate institutions. It is up to the American populace to stop the potential corruption of our government. It is a tall task, but almost anything is possible when courageous citizens stand united.