Big money is having a powerfully different effect on this year's national election campaign. We've seen it in the extraordinary oscillations of the Republican primaries, largely brought about by millions of dollars of television attack ads, financed not by the opposing campaigns so much as by groups outside the parties that can say whatever they want without the candidates or the parties being called to account.
These are the super PACs, political action committees on steroids. Their muscle—and some think their menace—comes from two federal court rulings in 2010, notably the Supreme Court's decision in Citizens United, that allow them to raise as much as they can from anyone and spend as much as they like, provided—and it was regarded as a key proviso—that they are independent. For a super PAC to make contributions directly to parties or candidates, or do anything in collusion with candidates, is illegal.
It is also very naïve to believe this independence can be real. As Sen. John McCain has noted, none of the justices has ever run for political office. The senator, in this matter the intellectual heir of President Theodore Roosevelt, was the co-author of the Bipartisan Campaign Reform Act, commonly known as McCain-Feingold. The trouble of a good effort was that the reform proved unrealistic in the way it severely limited the amount of money that parties can collect for campaigns. Money, like water, seeps through any crack. McCain predicts the result of the Supreme Court action will be major scandals—what the court calls quid pro quo corruption, meaning you scratch my back and I'll scratch yours. That will certainly be more likely if there is not full and early disclosure of where the money comes from, i.e., who is giving it, for undisclosed money is the most dangerous weakness in our system.
The high court's majority thesis is basically that the law McCain favors is unconstitutional. The First Amendment allows two, 20, or 1,000 or more individuals to pool their resources and exercise the same rights as individuals. Individuals do not forfeit their First Amendment rights when they come together to speak collectively, this thesis holds, since the First Amendment states that "Congress shall make no law ... abridging the freedom of speech" or compromising the right "to petition the government for a redress of grievances." The court essentially said that spending is speech, in recognition of the fact that in the modern world you cannot get your political message out without money. To restrict spending, therefore, is to restrict free speech.
It's a defensible position, but the result is an inundation of irresponsible negative advertising, not just on TV but also on the Internet. The ads have made household names of people like Sheldon Adelson and Foster Friess because of their multimillion-dollar cash infusions on behalf of the campaigns of Newt Gingrich and Rick Santorum, respectively. Nor are they alone. President Obama is being supported by a Democratic super PAC called Priorities USA Action; Mitt Romney is backed by a super PAC called Restore Our Future. The net result is that unprecedented amounts of money are being raised with which to wage political campaigns. This kind of fundraising has more than doubled compared to 2008.
Nobody has tested the boundaries of this new super campaign finance world, which has overwhelmed the laws passed in the 1970s in the wake of the Watergate scandal. Back then, individuals and groups could give campaigns a maximum of $5,000 per election cycle in most cases. The purpose was to eliminate big gifts that could be seen as bribes, while allowing candidates to raise sufficient funds for a national campaign. Surprise, surprise—lawyers found ways around the limits, largely by funneling money through groups that were not a formal part of any campaign and were focused on "issues" rather than directly electing candidates. This freed up unions, businesses, and public interest groups to engage in political campaigns, as long as they remained independent of all parties and candidates.
And "independent" has been defined so loosely by the Federal Election Commission that today we see candidates' former staff members running super PACs backing them; GOP candidates appearing at super PAC fundraisers; and Obama cabinet aides indicating they may attend super PAC events.
The fact is, money may be the worst of all political evils, but attempts to restrict money from campaigns have almost always been circumvented. Given the costs of campaigns in this era, particularly the cost of television, there is virtually no way to stop large pools of money from somehow supporting a particular candidate. Big money, put to honest use, may be benign, depending on your point of view. In 1968, for instance, when President Lyndon B. Johnson was expected to run again, Sen. Eugene McCarthy was the most outspoken and articulate opponent of the Vietnam War—Johnson's war, he called it. Popular support for the war was declining, but McCarthy lacked the resources for a strong campaign. Wealthy liberals and others made huge contributions and thus created a viable candidate and a voice for the millions of anti-war Americans. McCarthy did well enough in New Hampshire to persuade Johnson that he should not run for re-election. In the 2004 presidential campaign, though, we had the vilification of Sen. John Kerry through the Swift Boat ads.
Republicans see super PACs as counterweights to President Obama's fundraising advantage as an incumbent. In 2008, Obama angered McCain, his Republican opponent, by breaking his pledge to run within public spending limits. Obama broke his word because money will find a way: He'd tapped millions more through the Internet. This year and last he has chased money relentlessly, raising about $300 million for his campaign and the national party, on his way to a billion. And the presidential election is just the beginning, for supers will also focus on key House and Senate races, which are even more susceptible to being tilted by money. They will join other special interest groups like labor, women's associations, business lobbies like the U.S. Chamber of Commerce, and nonprofit advocacy groups such as the Sierra Club and the National Rifle Association, which have been spending millions.
It is hard to believe that the candidates will have no control over the literally hundreds of millions of dollars that are being, or will be, spent on their behalf—advocating positions they don't support, or sliming an opponent. But that is what we can expect. Some party insiders regard supers as unhelpful because they turn campaigns into "circular firing squads," in which the one with the most money dies last. The supers may not be telling people to vote for a candidate, but they certainly are telling the public why they should vote against his opponent. As analyst Bill Schneider has noted, the candidates' fingerprints may be missing, but in effect their campaigns are outsourcing negative ads. The supers can theoretically make any arguments they wish; many of the ads we've seen are dirtier than anything a candidate would want to see attached to his or her name. One pro-Santorum super accused Romney of being "just like Obama." A Romney super attacked Newt Gingrich by suggesting he has "more baggage than the airlines." It all falls under the court's belief that money is a proxy for information in politics and one voter's attack ad is another voter's piece of information.
We may not be able to end the role of money in American politics, but there are two things we should do, at least. No-limit donations aren't ideal, but let's organize the process so that money can be channeled back into the parties, and thus reinforce accountability. Secondly, disclosure. The public is entitled to know who is giving the money, how much, and how it was spent. Donors would at least be working within a campaign and not around it.
Yes, direct donors might have more direct leverage over candidates, but at least it would be transparent. And parties are an essential mechanism of American politics, as indeed of politics in all democracies. At their best—and this is important—they are not the "factions" that James Madison disliked but rather organizers of priorities, think tanks for refining policy, and they stand or fail by their conduct. Private donors in essence have no responsibility for the results of their "investments."
The sad fact is that after nearly four decades, we have not purged our politics of big donations nor cured public concerns about the excessive influence of the wealthy. Nor have we enhanced the trust factor of our elected leaders. In fact, it has gone the other way. Cynicism has deepened about our political system. But what we can say is that additional funding has changed races that would otherwise not have been competitive. And what is the alternative? Direct government funding of political campaigns, when incumbent legislators would be writing the campaign finance rules? Or requiring television companies to offer certain free time to the parties, as is done in Britain with party political broadcasts that are not very popular?
Our form of political financing probably goes under the heading of the evil of two lessers, but nobody has yet come up with a better solution.
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