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The U.S. Supreme Court's decision in "Citizens United" five years ago left the nation's campaign finance system in shambles and our constitutional system of representative government dangerously undermined.
"Citizens United" threw out a century of national policy and overturned decades of Supreme Court precedent to strike down the prohibition on corporate expenditures in federal elections. This set the stage for the creation of Super PACs and the return to federal elections of unlimited individual contributions, corporate funds and secret money.
These kinds of funds were at the heart of the Watergate corruption scandals of the 1970s - the worst campaign-finance malfeasance of the last century. The crimes included:
ITT Corp gave $400,000 to finance the 1972 Republican Convention. Soon after, President Richard M Nixon personally intervened to have the Justice Department settle an antitrust case in ITT's favor.
The dairy industry gave $2 million to the Nixon reelection campaign. Soon after, Nixon personally intervened to order the Agriculture Department to increase dairy price supports.
Nixon's personal attorney went to jail for the explicit exchange of an ambassadorship for a large contribution.
Twenty corporations were criminally convicted of violating campaign-finance laws.
History makes clear that unlimited contributions and secret money are a formula for corruption.
The Supreme Court recognized this in its landmark "Buckley" decision in 1976, which upheld contribution limits. The court ruled that corruption is "inherent in a system permitting unlimited financial contributions."
"Citizens United," however, returned unlimited Watergate-style political money to U.S. elections.
By the end of 2012, just two years after the ruling, Super PACs, nonprofit organizations and other groups making independent expenditures had spent more than a billion dollars in unlimited contributions in the presidential and congressional elections, including more than $300 million in secret contributions.
By the end of 2014, the combined contributions of the 100 biggest donors to outside groups that spent money in congressional races exceeded the total amount given to these races by all Americans who gave $200 or less, according to a "Politico" analysis.
The average contribution from these top donors: $3.3 million per donor.
The already endangered ability of ordinary Americans to be fairly represented in Washington has rapidly diminished in the Citizens United era. Wealthy Americans, corporations and other well-financed interests now have new opportunities to use political money to gain even greater influence over federal officeholders and government decisions.
This problem grew even worse in late 2014, during the closing days of the last Congress. Senate Majority Leader Harry Reid (D-Nev.) entered into a Faustian bargain with House Speaker John Boehner (R-Ohio) and Senate Republican Leader Mitch McConnell (R-Ky.). They sneaked a last-minute provision into the 2014 Omnibus Appropriations Bill that dramatically increases contribution limits to a national party to $777,600 per person per year - an eight-fold hike.
It goes without saying that only multimillionaires and billionaires can take advantage of this.
In 2002, federal officeholders were banned from soliciting, and donors were banned from giving large contributions to, the national parties because they created widespread opportunities for corruption - for the buying and selling of government influence and decisions.
Former federal officeholders provided affidavits in the case of "McConnell v. Federal Election Commission" supporting these restrictions on large party contributions, known as soft money. The Supreme Court in 2003 upheld the restrictions in McConnell.
Here's an example of the affidavits:
Former Republican Senate Whip Alan Simpson stated:
"I have seen firsthand how the current campaign-financing system prostitutes ideas and ideals, demeans democracy and debases debates. Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial lawyers to Democrats stopped tort reform. Big labor and big business use large soft-money donations to corrupt the system to the detriment of the little guy.
The "McConnell" decision was consistent with almost 40 years of Supreme Court precedent - where the court generally upheld the constitutionality of campaign-finance laws.
This changed, however, with the appointments to the Supreme Court of Chief Justice John Roberts in 2005 and Justice Samuel Alito in 2006. These appointments created a 5-to-4 ideological majority that has consistently supported plaintiffs hostile to campaign-finance laws.
"Citizens United" has allowed millionaires, billionaires, corporations and other well-financed special-interest groups to exercise disproportionate influence over our elections and a corrupting influence over government decisions.
The decision, and its aftermath, fundamentally undermined the basic constitutional principle of one person, one vote. It will go down as one of the worst Supreme Court decisions ever.
It is an ideologically driven decision that ignored the nation's history, the court's previous decisions and the need to protect America's representative system of government against corruption - a need recognized by the Founding Fathers in their expressed concerns about the dangers of corruption to the new country they were forming.
"Citizens United" will not stand the test of time. When the court's ideological makeup changes, the ruling is bound to be overturned.
As long as the decision governs, however, the flow of huge contributions into U.S. elections cannot be prevented. Yet some key legislative reforms can be made - even within this constricted constitutional framework.
They include:
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Repairing the presidential public financing system and establishing a small-donor public matching-funds system for congressional races;
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Disclosure requirements to end secret money;
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Ending individual candidate Super PACs by strengthening rules prohibiting coordination between candidates and outside groups;
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Repealing the new, exorbitant party-contribution limits;
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Banning lobbyists from bundling contributions, and
- Creating a new, effective campaign-finance enforcement agency.
Some of these changes are fundamental, others incremental. All need to be pursued.
Major technological breakthroughs also could dramatically increase the role of small donors in financing our elections, which would greatly diminish the importance of influence-seeking big money. The use of the Internet, social media, smartphones and other new technologies to raise and give contributions online can revolutionize the way our campaigns are financed.
Given the current divisive Congress - controlled by Republican leaders who oppose campaign finance reforms - the fight for legislative reforms will take time. Remember the words of the founder of the modern campaign-finance reform movement, John Gardner: "Reform is not for the short-winded."
National polls show the American people overwhelmingly reject the role that political money plays in Washington and recognize how it overrides their interests. Their concerns are one reason for Congress' historically low ratings.
But a broad-based national reform movement is building. Its goal is to convert citizen concerns into sustained citizen action to repair our campaign-finance laws. Similar reform efforts have worked in the past and will work again in the future.
This fight goes forward.
© (c) Copyright Thomson Reuters 2015.
18 Comments
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GalapagosnoGairaishu
The US Congress has become irrelevant and the presidency only exists to order invasions of other countries and appoint judges with lifetime tenure to the Supreme Court, which issues fatwas that control almost every aspect of American life. And they call this "democracy"? Could have fooled me...
Yogi Zuna
Democracy in the United States of America is dead, buried and already gone.
kcjapan
There is the law, the intent of law and the spirit of the law.
The law may be argued to conclusions that violate the Constitution. In Citizen's United, the Supreme Court struck down "U.S. Code, Section 441b of Title 2, that made it a crime for corporations and unions to use general treasury money to make “independent expenditures”. In the Court's opinion corporations could not be limited from speech simply because they were corporations.
In error, the Court failed to acknowledge the spirit and intent of Section 441b of Title 2, the necessary and essential documentation of influence in the electoral process.
Mr. Wertheimer well describes these corrosive influences that were held at bay simply because the identity of the 'speaker' was part and parcel of the content of speech, in effect Citizens United returned the cloak to the secret influence powerful and wealthy interests can now shield in Super Political Action Committees.
The Court violated both the intent and sprit of the law (Section 441b) which gave all voices a known identity and therefore a transparency for the voter and accountability for the legislator; both are essential in a free and fair exchange of debate and influence in a Democracy.
No easy remedy is available. The Court has created a wall between the electorate and wealth's influence. More sinister, a damaging attack on transparency can be mounted behind the various guises Citizens makes possible.
The Court then has created a virus that attacks all three definitions of law, the letter, the intent and the sprit. Against the very intent of the Founders, Citizens United effectively empowers wealth with impunity that can deny any access to the government wealth has purchased, assuring the best government money cares to buy without redress from citizens. The Chinafication of America is complete.
M3M3M3
It seems to me that the problem with America is the politization of the judiciary that is baked into the constitution. By contrast, judges to the UK Supreme Court are selected by a commission of other judges, lawyers and a few lay people. Some might say this isn't particularly democratic but I think it produces preferable results.
Todd Topolski
Always the claim an inanimate object miraculously causes dishonesty, crime and unethical behavior. How about blame the actual politicians who act this way because they are making the choice to be untrustworthy.
Money does not corrupt. All money causes is already bad people to Do more of What they are already inclined to Do.
So it isn't dark money killing democracy, democracy is being killed by freeloading, dishonest incompetent, unethical people voted or appointed or hired into governmen.
nath
Citizens United was a terrible decision that will have widespread implications for the future of the United States. Does it mean that democracy is dead, though? No. The proof is that I can type this and Fred Wertheimer can make his statement without fear. As long as there is freedom of speech and information, democracy will endure.
1glenn
Money is power, and power corrupts. We were supposed to have a balance of power in government, but the Supreme Court ended that.
Frungy
They're not afraid of you because no-one important is listening. Your freedom to type what you like and say what you like only matters if government is obliged to listen... which they aren't.
Democracy in the U.S. is dead and buried, and has been for a very, very long time.
nath
On top of that, freedom of speech and democracy are not the same thing. For example, Thailand is democratic, but they do not have freedom of speech - try speaking bad of the king and see how quickly that gets you in jail.
The US only has the appearance of democracy. Between two parties, gerrymandering, and now this contribution issue, only votes that matter to those with power have any sway.
kcjapan
"the problem with America is the politization of the judiciary that is baked into the constitution" - M3M3M3 - 11:06AM
Thanks for that, 'baked into the Constitution', who coined that? Well done and a useful analogy.
nath
Yeah, having judges needing to campaign for votes provides motivation to make judgement based on what they think will earn them the most votes.
nath
@Frungy @Strangerland
According to those in false equivalency land, democracy does not exist anywhere then. This is a foolish sentiment: there are countries with manifestly more representative governments than others.
ArtistAtLarge
While money and favors in government are as old as recorded history, in the US, the effect did not become as overwhelming as it currently is until the 1980s with the massive amount of deregulation, leading directly to the Savings & Loan disaster (Tax Reform Act of 1986) which turned out to be nothing but practice for the recent Great Recession, which occurred right after... yep, more deregulation. (repeal of Glass/Steagall Act in 1999)
The grand total for the Wall St. bailout approached almost $20 TRILLION. The USA is now an openly fascist nation with a thin veneer of a republic left.
Democracy of any kind is indeed dead in the USA.
kcjapan
ArtistAtLarge - 04:48AM
Chilling, absolutely chilling.
A very good case can be made with the deification of Reagan, Gingrich's war on government and easily the Bush/Cheney government privatization of war and peace. Add in the elimination of media independence and there is little left to undermine the characterization of "an openly fascist nation with a thin veneer of a republic left".
What then is the form and character of government in the States and who else knows about it?
TrevorPeace1
As a Canadian neighbour and very interested observer of US politics and its judiciary, I can only say thank God my grandparents came back from LA before my mother and I could be born there (I'd have been drafted for Vietnam, and that scares the bejesus out me, still).
nath
@ArtistAtLarge @kcjapan Hilarious considering that democracy in the US is much stronger than in Japan, if you judge it by freedom of the press. Even here I get my posts censored trying to set you straight. Must be nice to take potshots at the most powerful democracy while being completely blind to the scourge of the Russians and the Chinese.
@TrevorPeace1 How is life in the 1960s? You know the draft was ended and can't be reinstated without kicking up an enormous amount of fuss, right?
kcjapan
"I can only say thank God my grandparents came back from LA before my mother and I could be born there" - TrevorPeace - 06:41AM
PROOF! Some were against America even before they were born, and their unborn parents. Read your Bible friend, all the answers are there about Democracy, The Supreme Court and Citizens United just ask Ted Cruz. It's already being suggested he's one of "them".
lostrune2
Democracy is dead everywhere it matters.
As has been said: democracy is the worst form of government............. except for all those other forms that have been tried from time to time.