The Federal Election Commission and Citizens United
With the increasing role Super PACs are playing in the 2012 Republican primaries, and will play in the general election, isn’t there some entity to police the donation of unlimited funds to these groups and make these donations more transparent? Theoretically, for awhile, there was; the Federal Election Commission (F.E.C.).
Congress established the F.E.C. in 1974 as an independent regulatory agency. Its mission was to enforce the provisions of campaign finance law for federal elections, including the public disclosure of information, the limits and prohibitions on contributions, as well as to supervise the public funding of presidential campaigns.
To insure a balanced political approach by the Commission (as well as future gridlock), it was to consist of six members, with no more than three permitted from the same party, and with four votes necessary for any action. The Commission was structured this way to supposedly ensure bipartisan, or nonpartisan, rulings, (and to be certain that no decisions would be overly detrimental to either of the two major parties). The members were to be appointed by the President and confirmed by the Senate to serve six year terms, with a rollover of two new appointees every two years.
Critics of the F.E.C. point to the balance between Republicans and Democrats as being responsible for its inability to force adherence to campaign finance regulations over the years and for seeming to be supportive of the interests of the two major parties. When the Commission has acted, it is usually long after the fact, the elections being over and the winners ensconced in their offices, the penalties often minor. Currently complicating the picture, the terms of five of the six F.E.C. commissioners have expired. Though President Obama could appoint new members, Senate Republicans would undoubtedly block their confirmation.
The original Federal Election Campaign Act in 1971 along with its subsequent amendments produced guidelines with the objective of legally limiting campaign contributions. As ways to evade these regulations were found, a further attempt to control runaway contributions, the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold) was enacted. This was subsequently emasculated by the Supreme Court in the Citizens United decision two years ago.
The impotence of the F.E.C. and indeed any government agency to limit campaign contributions has become more evident (and tragic) since the Citizens United ruling. Special interest money has been surging into so-called Super-PACs and independent organizations, some of them masquerading as social welfare advocates, to run attack ads against political opponents. The Supreme Court held that unlimited contributions by corporations and unions, as well as wealthy individuals, to these so-called “independent” organizations are permissible, based on the concept that political spending was a form of free speech. The use of 501(c)(4) non-profit affiliates by these organizations allows some donors to remain anonymous while they covertly influence elections with vast amounts of money. In those SuperPACs where donors are revealed periodically, it is often after the election has taken place, so that voters are not aware of where the money in support of a candidate came from.
While the F.E.C. can still monitor and limit contributions that go directly to political parties and candidates, unrestricted spending on campaigns by outside organizations makes this power of scant value. It is possible that SuperPACs and independent groups will collect and spend more during the current election cycle than the candidates and the political parties themselves, as occurred in the media blitz during the recent Florida G.O.P. primary. The ability of these organizations, by utilizing special interest money, to shape politics in America is a grave threat to the democratic process.
The impotence of the F.E.C. to control campaign spending is another symptom of the dysfunction in Washington. The two parties continue to be unable or unwilling to agree on how to bring the nuclear arms race of campaign financing under control. Unfortunately, overturning Citizens United may take a constitutional amendment or a change in the composition of the Supreme Court, both of which seem unlikely. Until Americans understand the ramifications of Citizens United and pressure politicians to limit the influence of special interest money, spending on federal elections can be expected to escalate indefinitely.
Resurrecting Democracy
A VietNam vet and a Columbia history major who became a medical doctor, Bob Levine has watched the evolution of American politics over the past 40 years with increasing alarm. He knows he’s not alone. Partisan grid-lock, massive cash contributions and even more massive expenditures on lobbyists have undermined real democracy, and there is more than just a whiff of corruption emanating from Washington. If the nation is to overcome lockstep partisanship, restore growth to the economy and bring its debt under control, Levine argues that it will require a strong centrist third party to bring about the necessary reforms. Levine’s previous book, Shock Therapy For the American Health Care System took a realist approach to health care from a physician’s informed point of view; Resurrecting Democracy takes a similar pragmatic approach, putting aside ideology and taking a hard look at facts on the ground. In his latest book, Levine shines a light that cuts through the miasma of party propaganda and reactionary thinking, and reveals a new path for American politics. This post is cross posted from his blog.
26 Responses to “The Federal Election Commission and Citizens United”
Only a Constitutional Amendment will suffice. I believe that it will come, but I am not sure. The difficulty with getting an amendment through will be that the organizations it seeks to suppress will, undoubtedly, use huge sums of money in an attempt to thwart the effort. It is a perfect example of American politics that the only way to control an out-of-control entity has the Catch-22 of needing to control the entity BEFORE we can enact the legislation to control it.
Kind of reminds me of…oh yeah! The Republicans against the Democrats!
Campaign laws necessitate an Amendment to the Constitution because the 1st Amendment denies Congress authority to make laws abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.
I for one am not willing to give up freedoms previous generations fought and died for in a questionable attempt to muzzle the voice of people who disagree with me. And make no mistake, campaign laws operate via censorship.
From 1791 to 1886 1st Amendment freedoms of speech, press and assembly were the sole rights of flesh and blood citizens.
From 1886 to 1973 flesh and blood citizens and media corporations enjoyed equal freedoms of speech and the press.
From 1974 to present only the commercial media enjoy unrestricted freedom of speech and the press. Following reports of serious financial abuses in the 1972 Presidential campaign, Congress amended the FECA in 1974 to set limits on contributions by individuals, political parties and PACs.
2 USC 431 (9) (B) (i) The term “expenditure” does not include any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;
But what is the difference between slanted news stories or editorial opinions and political ads anyway? “Section 431(9)(B)(i) makes a distinction where there is no real difference: the media is extremely powerful by any measure, a “special interest” by any definition, and heavily engaged in the “issue advocacy” and “independent expenditure” realms of political persuasion that most editorial boards find so objectionable when anyone other than a media outlet engages in it.
I suggest watching the following videos before pushing for more campaign laws:
http://www.ij.org/freedomflix/33-sampson
http://www.ij.org/freedomflix/15-camppolitics
http://www.ij.org/freedomflix/39-azcleanelectionsvideo
“Until Americans understand the ramifications of Citizens United and pressure politicians to limit the influence of special interest money, spending on federal elections can be expected to escalate indefinitely.”
By the time they understand it will be too late. Maybe it already is.
This is the crux of the matter, and the post would be more persuasive if it could demonstrate how special interest money threatens rather than embodies the democratic process.
That people should be able to spend money to influence causes they care about doesn’t sound that scary to me, it sounds like democracy trying to operate at scale. Even doing it anonymously doesn’t sound scary–why should I imagine I have a right to scrutinize your political activities? And the dollars involved don’t sound scary, given the importance of the decisions hanging in the balance. As George Will pointed out, the $2B the presidential candidates are spending on their campaigns sounds like a lot of money, but it’s less than Americans are about to spend on Easter candy.
The outpouring of money by wealthy donors to support candidates they favor undermines the very premise of democracy. One person, one vote doesn’t mean anything when money can dominate the political dialogue and influence people whom to vote for. It’s fine to give money to the candidate of your choice, but there should be limits so a few wealthy donors cannot buy most of the media time to transmit their message to the exclusion of their opponents.
But surely influencing people whom to vote for is core to the premise of democracy. People on either side of a cause need to be able to make their case to voters.
“Dominating the political dialog” implies only one side is getting heard. I’d agree that would be a problem if it were happening, but is it? Most of the big issues seem to have wealthy donors and well-funded organizations on both sides.
The ability to raise money shouldn’t determine a candidate’s ability to influence voters through media advertising. There needs to be some way to level the playing field so candidates without wealthy friends have a chance.
Why don’t they just cut to the chase, allow corporations to back up large dumptrucks full of cash to the office of the politician of their choice, attend meetings of Congress, write bills and vote in their place. The absence of pretense would be refreshing.
Candidates can raise money by courting a few wealthy friends or a lot of not-so-wealthy ones, but the process definitely does filter for candidates who can successfully get people behind them.
That seems an appropriate filter for our leaders, doesn’t it? If not, what better one would you suggest?
The one we had before Citizens United, where corporations couldn’t just lob unlimited money at campaigns. Sure, they could still funnel quite a bit, but it was better than it is now.
Measured by what, slamfu? Yes, more dollars are being spent, but so what?
I spend a lot of time in meetings, so I’m well aware that the decision making process costs money in any organization. And careful, well informed decisions cost more than the other kind. If people are spending money toward national political decisions, how does that constitute a problem? And how else could decisions be made?
The problems are that small sections of the electorate with a lot of money can drastically affect the outcome of elections. What does my free speech matter when all I can afford is a picket sign on a street corner when a big time political investor can single handedly bankroll a state with radio and TV ads? You don’t see the problem there?
So yea, candidates are going to court the few wealthy ones, and the rest can sit out in the cold. Its a mockery of democracy. And of course those big investors are going to get political clout. Please tell me how that differs from bribery?
P.S. – Seeing who can trade influence to the biggest donors has got to be the worst filter I can think of for elected leaders.
Yes, small sections of the electorate can heavily influence elections. Under what system could it be different? (Besides, obviously, dictatorship) Special interests will always pull above their weight because they’re more motivated to find a way to do so.
And no, I don’t see the problem that your yard sign commands less attention than a tv campaign. Presumably if the cause you’re promoting has wide support, there are a lot of such signs around. And thanks to CU, you yard sign owners can form a corporation and gang up on the rich guy running the ads.
Yes, because everyday citizens have the requisite time and experience to organize and compete with professional political machines. Are you kidding me?
Yes, to some extent it is always going to be pay to play, but that doesn’t mean make it a free for all. There need to be rules. The vast majority of Americans spend their time working in a job that doesn’t have to do with politics, and has a life of some sort, raising kids, etc….
If I have money, and a point to get across, I can simply cut a check, no organizing, no spending a month trying to get everyone in my community together, take a night off from the kids and family, no arguments about whose running this ad hoc community group and how we are spending our money, I JUST CUT A CHECK, an the pros take care of it for me. And its not just about the money, which a small community group could maybe get, its the access. Professional political operatives have it, the rest of us don’t.
Your view is one many people have, that if we just remove all restrictions, its fair now right? That is a naive view, but it is a very pervasive one. On the surface it seems true, but like so many things once you look at the whole system, you see that the viewpoint itself is a tool in disguising how the system is rigged. And CU just made it a whole lot worse.
Also, few people giving large amounts of money to politicians for political favors is also known as bribery. CU institutionalized it in our election system. Just set a reasonable cap on donations to campaigns. We have regulations specifically to protect people from the historically bad things corporations do. Pollution, price fixing, wage fixing, labor violations, market manipulation, lying to stockholders, pubic safety violations etc….. Letting these same corporations have so much influence on the who is in charge of regulating them is an absurd conflict of interests.
Plenty of political machines were started exactly that way, by everyday citizens organizing around a cause. They incorporate, they raise money, they hire help, they get their message out.
Do they have to work harder than some billionaire, who could wield as much influence by asking his butler to have someone produce an ad? I’m sure they do. The rich have everything else easier; of course they’re going to have political influence easier too. That’s the monetary law of gravity: you can trade money for pretty much anything else you want. If you’re hoping to put an anti-gravity field around political influence, well, good luck.
I find your yard sign example frankly terrifying. The only way you could ensure that some rich guy couldn’t wield more influence than you and your yard sign is by outlawing all the ways he might do so. You’d have to restrict everyone’s political activities to messages expressed on a government-approved 2×3 sign in the front yard. That’s not democracy, that’s totalitarianism.
You haven’t advocated such restrictive rules, of course. I’m still hoping you’ll advocate some specific alternatives to letting people spend freely, because they all look pretty bad to me. They put citizens’ freedom to fight for political causes at the mercy of incumbent politicians. That seems much scarier than a more competitive political arena, where groups are free to raise money and duke issues out through competing ad campaigns.
Slamfu– I agree with you — completely– you nailed it.
Case in point– Sheldon Adelson the ultra rich backer of Newt Gingrich who has contributed at least 11 million in super Pac money to Winning Our Future.
Theoretically if Romney was not in the race, Adelson could almost single-handedly propel Gingrich into the nomination. And Adelson is a Zionist — so we hear Newt telling us that the Palestinians are an invented people, vowing to move our embassy in Israel from Tel Aviv to Jerusalem, and planning regime change in Iran.
On the other hand if not for Adelson, Gingrich would be reduced to the butt of late night talk show hosts jokes- and his campaign hopes would be D.O.A.
Okay, bluebelle, on the one hand we have Newt Gingrich taking extremist positions. On the other hand, we have government threatening individual citizens with legal reprisal for sending political emails to friends.
IMHO if Newt’s extremism is a problem at all, it seems like a self-correcting one. Newt winning the Republican nomination would be the best news the Democrats have had in years.
But if you believe that Newt’s positions are an example of a threat to democracy Mr. Levine refers to, and that we could get Newt to sound reasonable by tightening the screws on the first amendment, how many more cases of individuals harassed or silenced by campaign finance laws would you say are an acceptable cost?
Dr. J
Who would want to take the chance that Newt’s, or any other candidate’s, extremeism gain credence in our political system due to some billionaire’s goal of controlling our domestic or foreign policy?
Do you think the extremeism would fail because the general public is so level-headed and would repel it? Or that a foreign entity would never be clever enough to get a candidate elected who could shift policy to their benefit and against our own?
I wish I were that optimistic, and I used to be, until the 2008 election. Excess money may not give us a Newt presidency or a Palin Vice Presidency, but it is more likely than it was, I think.
To use the flawed Arizona state law to argue for more money in national politics is disingenuous at best. You are arguing straight from George Will’s column which is an extreme vision in itself.
slamfu has it right. For us to be a viable democracy, excessive self-centered influence must be curbed.
The premise of democracy is that voters can be trusted to decide what’s sensible and what isn’t. They won’t do a perfect job, but in the long run they’ll be better stewards of their own interests than monarchs or oligarchs.
You obviously don’t have to agree, and you’ll be able to point to ample evidence that voters must be shielded from undesirable influences. Fair enough, but don’t go claiming you’re standing up for democracy.
Citizens United pretty much guarantees voters don’t have a fair playing field any more. Many are not aware of how that decision is affecting the political arena as far as allowing a rich individual out-sized influence– remember many voters like Newt just because they think he’s a good debater and maybe less than 10% have any idea who Sheldon Adelson is.
Citizens United almost guarantees that the ultimate result will be oligarchy in the way its set up to allow the rich outsized influence over voters. 94% of the time the candidate with the most money backing him wins..
Dr. J
No, I’m claiming that representative democracy won’t work if the only candidates available to choose from are those propelled to the ballots by moneyed self- interest rather than those that are concerned with the needs of the voters.
How, then, can a voter be able to achieve his own self-interest? At that point it would be a choice between one oligarch, or extremist, and another and the sensible thing would be to not vote at all. Some argue we are already at that point.
Certainly the 5.8 billion spent in 2008 and the 11 billion expected to be spent in 2012 has done nothing to enhance the self-interest of the average voter, he is in worse circumstances than ever.
I’d say it’s the other way around, Bluebelle. Prior to CU, rich individuals were free to engage in all the advocacy spending they pleased. McCain-Feingold was discriminating against the rest of us, who can’t individually bankroll ads and so on, and who therefore rely on advocacy groups and other corporate entities to promote our interests. To the extent national politics is a clash of titans–corporations and rich individuals–CU shifted power away from the rich and toward corporations.
I’m not sure how you’re averaging everyone’s self interests together and concluding they’re on the decline, Ohioan, but okay. So what’s the right amount to spend, and how will that enhance the self-interest of the average voter?
The decline in the average voter’s monetary well-being can be assessed by looking at any recent poll. Money isn’t everything, but it will get or keep a home for a family and it will allow the children to get a college education if they want. Once those items are taken care of, other more subjective wants can be addressed. When those basic needs are not taken care of, extremest candidates will flourish.
There is no “right amout to spend”. Any amount will do as long as the average voter has the ability to vote for a candidate that he reasonably feels could be expected to put his self-interest ahead of an individual’s or group’s self-interest. The Citizens United ruling makes that less and less likely to occur.
So the amount of money doesn’t matter, but more money is worse? If that were true, I would expect, say, governors and state legislators to be less beholden to special interests than presidents and congressmen. I haven’t noticed such a pattern.