Campaigns need votes to win. But
they need money simply to survive. They get that money from a
vanishingly small percentage of Americans.
According to Harvard law professor Lawrence Lessig, only
0.26 percent of Americans give more than $200 to congressional
campaigns. Only 0.05 percent give the maximum amount to any
congressional candidate. Only 0.01 percent — 1 percent of 1
percent — give more than $10,000 in an election cycle. And in
the current presidential election, 0.000063 percent of Americans
— fewer than 200 of the country’s 310 million residents — have
contributed 80 percent of all super-PAC donations.
“This, senators, is corruption,” Lessig said Tuesday, in
testimony before the Judiciary Committee. “Not ‘corruption’ in
the criminal sense. I am not talking about bribery or quid pro
quo influence peddling. It is instead ‘corruption’ in a sense
that our Framers would certainly and easily have recognized:
They architected a government that in this branch at least was
to be, as Federalist 52 puts it, ‘dependent upon the People
alone.’ You have evolved a government that is not dependent upon
the People alone, but that is also dependent upon the Funders.
That different and conflicting dependence is a corruption of our
Framers’ design, now made radically worse by the errors of
Citizens United.”
Last week, Senate Democrats took another run at blunting
the influence of Citizens United, the U.S. Supreme Court ruling
that permits unlimited contributions to independent political
committees. The lawmakers voted for the Disclose Act, which
would have required groups making more than $10,000 in campaign-
related expenditures to disclose contributors who had donated
more than $10,000. No longer would information about election
spending be limited to, “This ad paid for by Americans United
for a More American America.”
Republican Filibuster
They failed. Senate Republicans successfully filibustered
the legislation. Even if the Democrats had succeeded, the
Disclose Act would not have gone nearly far enough.
It’s a quirk of politics that we tend to focus on the
aspects of problems that are readily dramatized by legislation.
This makes a certain kind of sense: It’s better to spend our
time thinking about what we can fix than what we can’t. It can
also make us a little myopic.
The Disclose Act was ultimately a minor piece of
legislation. Recall those numbers above? It wouldn’t have
changed any of them. Nor could the act truly force full
disclosure. As Lessig argued in his testimony, the Disclose Act
wouldn’t force disclosure of money that hadn’t been spent. In
today’s world of unlimited super-PAC expenditures, that may be
the most influential money of all.
The power of super-PACs is not restricted to their ability
to buy airtime for television ads. That’s what attracts all the
news coverage, but the more insidious function of super-PACs may
be influencing legislation before a single dollar is spent — by
threatening to buy future airtime.
Imagine the oil industry wants a small, technical change in
a law setting environmental standards. It’s an issue few voters
are following, or will even hear about. But it’s worth billions
of dollars to the industry. So oil companies establish a super-
PAC and send lobbyists to every congressional office with a
simple message: Legislators who support the change will receive
a donation, and each legislator who votes against it will be
subject to $1 million in super-PAC attack ads in their district
in the last week of the campaign.
The most likely outcome is that compliant lawmakers will
guarantee that the super-PAC money never has to be spent.
Without spending, there is nothing to disclose.
Wrong Problem
The deeper problem is that the Disclose Act is addressing
the wrong problem. Citizens United focused attention on the
failures of our system of campaign finance. But it did not
create them. As Lessig puts it, “On Jan. 20, 2010, the day
before Citizens United was decided, our democracy was already
broken. Citizens United may have shot the body, but the body was
already cold.”
The real culprit is arguably the 1976 case Buckley v.
Valeo, in which the Supreme Court held that political money is
tantamount to political speech. As a result, Congress can’t
limit spending by campaigns. Citizens United and related court
decisions made it harder to regulate spending by outside groups,
which further eroded the legitimacy of the system. It is all but
impossible to break politicians’ dependence on big funders so
long as their opponents can benefit from moneyed interests
spending unlimited amounts of cash on an election.
There are good ideas out there. The Fair Elections Now Act
would make it substantially easier for members of Congress to
rely on small donors to fund their campaigns, though it still
would not do them much good if a super-PAC descended in the
final days of a race and spent millions on negative ads.
Fundamental solutions require more radical thinking. At the
same Senate hearing where Lessig testified, Ilya Shapiro, a
scholar at the libertarian Cato Institute, said, “To the extent
that ‘money in politics’ is a problem, the solution isn’t to try
to reduce the money — that’s a utopian goal — but to reduce
the scope of political activity the money tries to influence.
Shrink the size of government and its intrusions in people’s
lives and you’ll shrink the amount people will spend trying to
get their piece of the pie or, more likely, trying to avert
ruinous public policies.”
It is true that if you could shrink the government to a
size where it no longer mattered in people’s lives, moneyed
interests might be less likely to try to influence elections.
But that seems unlikely, and between the dismantling of the
social safety net and the destruction of our military might, the
cure might be worse than the disease.
The other side of the coin — and, I admit, this is utopian
thinking — is a constitutional amendment making it possible to
limit the role of private money in politics. This is not a
solution I like endorsing, because it seems impossible to
imagine it actually happening. But it was, presumably, difficult
for a previous generation to imagine that the Constitution would
be amended to permit the direct election of senators, thus
necessitating expensive campaigns that only a small fraction of
Americans would fund. Yet here we are.
