In 2000, the total investment in United States federal elections—congressional and presidential—was $3 billion. By 2020, it had shot up to $14.4 billion. Perhaps it’s time to ask what that additional $11.4 billion does for the American people. What’s really being bought?
Campaign finance is back in the news thanks to the actions of Senators Kyrsten Sinema and Joe Manchin, who have spent the past few months blocking the Democratic Party’s Infrastructure Investment and Jobs Act in the Senate. When journalists looked into possible motivations for this obstruction, they found money to be a key factor. Sinema raised over $1 million during this time. Manchin raised over $1.6 million in the same period. Much of this money is from industries like pharmaceutical and oil who are facing new regulation from the Act.
Most people agree that campaign spending should be limited, yet every election is more expensive than the last, and congressional seats are generally getting more expensive to win. It’s natural to wonder, why are our elected representatives receiving more each year, and what are they providing in return? One would expect some subtlety from elected officials about being in the thrall of moneyed interests. But it’s blatant, and everyone knows it. Former President Trump said, “When you give, they do whatever the hell you want them to do.” In a sane world, our highest elected official going on record that we have legalized a system of bribery would merit drastic action. But the brakes you would expect to see in a democratic system—some meaningful legislative action leading to donation limits, spending limits, control of which groups can donate and which can’t—are largely not there. America, a nation reverential of its egalitarian values, is paralyzed by wealth in politics.
It seems obvious that the current state of affairs around corporate financing of campaigns is anti-American. The world’s oldest continuous democracy has devised a system that fights every attempt to reign in cash in politics, mostly because those responsible for regulation are the ones benefiting from the lack of regulation. It’s important to trace how it came about, and to understand why a century of legislative efforts to address the problem ended with little success. It hasn’t always been this way.
History of Campaign Finance
Winning office costs money. Roman consulates were notoriously expensive to acquire, requiring candidates to go into extreme debt which they would later pay back upon winning by fleecing the provinces they were meant to administer. Winning the crown of the Holy Roman Empire required huge bribes to electors; the money would be fronted by powerful banking families who expected a return and their interests protected. But for most of the history of electoral systems, the problem has been candidates bribing voters. Food, banquets, jobs, and outright cash payments to secure support were the main source of worry in republican systems. This was also true in the early days of the United States.
The United States Constitution is not equipped to tackle the problems that came with campaign finance because the founders had no idea what campaigning would become. The early US political system had a limited electorate and a limited scope of appropriate behavior accepted by the elites that designed it.1 For starters, openly campaigning was seen as gauche. Visibly seeking power was not something proper gentlemen did, and it would take a century until the US saw something resembling a modern election. Women, slaves, and non-property owning men could not vote. The Senate was off-limits to direct election. Presidents were picked by the Electoral College, whose members were often chosen by state legislatures. A small electorate that could not vote directly on key national races meant significant campaign fundraising wasn’t necessary. Politics was an elite’s game very few could play.
The taboo against campaigning coupled with the few people who could participate in the process meant that running for office required independent wealth. George Washington lost his election to the Virginia House of Burgesses in 1755 to a candidate who plied voters with beer, whiskey, rum, and wine. Three years later, Washington did the same and won. Unlike today, where the presidency comes with the sweet package of the post-presidency book deals and speaking fees, running for office was not a good way to make money. It was done out of a sense of obligation. It was expected of them, and they had to pay their own way.
The expansion of the vote to non-landowning men ushered in the era of Jacksonian Democracy. Politics was a mass affair now, and this necessitated the creation of organized political parties that could raise money from rank-and-file supporters. The method remained bribing voters with cash or jobs on behalf of a candidate, a spoils system as it was known.2 This explicit cash/job for votes transaction was easy to implement due to the fact voting was not conducted in secret. For most of the 19th century, the state was not in charge of providing ballots. Party newspapers would print out ballots of different shapes and sizes, often pre-filled, and hand them out to supporters who would cast them in person on election day. It was simple to follow who took payment and broke a promise. By modern standards, these elections were neither free nor fair, with double voting, non-resident voting, rampant voter intimidation, and payoffs in the thousands. The corruption was obvious; in the New York 1844 presidential election, 55,000 votes were counted out of an eligible population of 41,000.3 Reformers pushed states to switch to the secret ballot and abandon the spoils system. By the end of the 19th century most states had moved away from it. However, as the system was ridding itself of the contaminant of the spoils system, a new one arose to replace it: the corporation.
Campaign finance, as an issue recognizable to us today, burst into the national scene during the 1870s, also known as the Gilded Age. The richest 10% of Americans owned three quarters of the wealth, largely through giant corporations and trusts, and they mobilized it for political reasons. Before this, campaign money came from within the political system, from the wages of office-holders who owed their job to the party. Industrialization and the subsequent growth of the corporation ended this. Now money poured in from outside.2
In 1880, President James Garfield appointed a Supreme Court justice at the explicit demand of robber barons, who later donated large sums to the party upon confirmation. In 1888, the Republican National Convention (RNC) was caught turning their campaign donations into voter bribes. This was the fist big controversy that involved campaign finance, and it made hay for political cartoons and newspaper editorials. It was in response to this election that one of the best-known American political cartoons, Joseph Keppler’s “Bosses of the Senate,” was published. It depicts the senate chamber surrounded by rotund, giant men with cruel faces, dressed in tophats and money bags. Each one is labelled with a business interest.2
The 1896 presidential election marked an important turning point, as the old, dying way of finance was finally overtaken by the new. It is perhaps the only election where a key fundraiser was as well-known as the President he helped elect. Mark Hanna, a businessman and political fixer from Ohio, helped elect William McKinley without McKinley having to leave his porch. Hanna ushered in a novel system of fundraising and solidified the Republican party as the business party, a legacy that remains over 100 years later. McKinley’s opponent was William Jennings Bryant, who advocated for policies that would cause inflation, helping those who owned mortgages or were in debt. It sent Wall Street into a frenzy, which Hanna capitalized on with mathematical precision. He asked for 0.25% of a business’s capital as a campaign donation for McKinley. Corporations thought it was a fair price to pay for defeating Bryant’s brand of populism. It succeeded spectacularly. To this day, the 1896 election remains the most well-funded one as a percentage of GDP. As the burgeoning urban professional middle class achieved a political consciousness that made them skeptical of business overreach, something would have to be done about this, and the progressive era dawned.
Campaign Finance’s Progressive Era
During the Roosevelt administration (1901-1909), a series of scandals surrounding campaign finance became a national sensation. The first was a life insurance company giving to candidates directly from their treasury, and hiding the practice as legal expenses. The second involved an accusation of unfulfilled quid pro quo directly tied to President Roosevelt, who was accused of taking a political donation of $250,000 in exchange for getting a senator out of the way by appointing him as the French ambassador. Even the pro-Roosevelt Wall Street Journal denounced the “corrupt link between the politics of business and the business of politics.”2
Enough newspapers and politicians were calling for action that something had to be done at the federal level. President Roosevelt announced his support for a ban against corporate spending and a disclosure law. Legislation quickly followed. In 1907, the Tillman Act passed without debate in both chambers. It banned nationally chartered corporations and banks from making any donations to presidential and congressional elections. This was followed in 1911 by the Federal Corrupt Practices Act (FCPA), which set caps on how much could be spent on a campaign and mandated disclosure (donors’ names, addresses, and an employers’ names). Aside from some modifications, the Tillman Act and the FCPA remained the law of the land until the 1970s.2
What can we gather from this? At the turn of the 20th century, and regardless of party or ideological predilection, policymakers saw money as a pernicious force in politics. According to historian Robert E. Mutch, the flagship paper of the Republican party, the New-York Tribune, printed:
In the United States the government is intended to be a government of men. A corporation is not a citizen with a right to vote or take a hand otherwise in politics. It is an artificial creation. … Interference by it with the state and attempts by it to exercise rights of citizenship are fundamentally a perversion of its power.
Mutch found no newspaper at the time that was willing to defend the principle of corporate donations to campaigns. The political elite consensus was self-conscious, concerned with actual corruption and the public perception of corruption. There is no better way to summarize it than by quoting directly from the Senate Report on the Tillman Act: “The evils of the use of [corporate] money in connection with political elections are so generally recognized that the committee deems it unnecessary to make any argument in favor of the general purpose of this measure.” In elections after 1907, political parties asked for smaller donations, and business magnates donated less, all in the hope of avoiding seeing their name in the papers.
But the new laws didn’t work as intended. Politicians are never fans of regulating themselves. For a law to have any meaning it must be enforced. The Tillman Act had no teeth, as Congress had not created any body to enforce it. On paper, corporations couldn’t donate, and donations would have to be disclosed. But in reality, the system can be described as a backroom understanding between economic and political elites. Politicians altered their behavior and removed a big portion of money from the system, but there was a gentleman’s agreement to not look too closely at the issue. Still, it was a symbolic victory and a statement of principle. It would take another scandal for the code of silence around campaign fundraising to break again.
Watergate and the FEC
By the 1970s, not much had changed. The Tillman Act had been expanded to include labor unions, who had become a fundraising powerhouse for the Democratic party in the 1930s. They had been found to be analogous to corporations, and were banned from making political contributions to campaigns from their treasuries. Generally, politicians remained committed to hiding where their money was coming from.
The unspoken political elite consensus to limit corporate money in politics fractured under Nixon. In violation of the FCPA, twenty Nixon fundraising committees did not file a single report in 1968. At the same time, 107 congressional candidates ignored disclosure requirements.2 Nixon’s attorney general declined to prosecute. The widespread flaunting of rules coupled with the dissatisfaction with government officials that permeated the 1960s brought attention to campaign finance. Out of this dissatisfaction arose the Federal Election Campaign Act (FECA), an attempt to rationalize and modernize the previous regulatory scheme. However, it was not a serious effort to keep money out. The Democrats, cash-strapped and not wanting to be outraised by Republicans, were not interested in regulating money in politics but in capturing it for themselves. The FECA mostly strengthened disclosure and set a limit for broadcast spending. Overall, it actually weakened existing legislation. Contribution and expenditure limits were repealed, and funding for Republicans soared.
If it wasn’t for Watergate—President Nixon’s campaign being caught financing a break-in of the Democratic National Committee headquarters and Nixon approving payouts to the burglars—the issue would have remained neglected. But the scandal and its cover up consumed the president and ignited a wave of reform. Self-conscious legislators sought to curb the worst excesses of money in government, and the FECA was expanded and amended in 1974 under President Ford. It kept in the restrictions from the previous acts, but mandated stricter disclosure, brought back expenditure limits, created public funding for presidential campaigns, and finally created the Federal Election Commission (FEC) to actually enforce the rules.4 This was America’s first real and functioning attempt at regulating campaign behavior and money in politics in the modern age.
It would not last.
When Money Became Speech
The post-Watergate rush of reform around campaign finance ran headfirst into a newly ascendant right wing of the Republican party. A muscular conservatism—the kind that William F. Buckley’s National Review had been advocating for—was almost triumphant by the late 1970s. In their bid to break the New Deal consensus, the new right set out to overturn long-held convictions they believed had led America to decay. Overturning campaign finance rules was one of their first victories. Since the new regulations had been passed by Congress, and therefore could not be fought there, the conservatives turned to the courts with a new strategy:
What if money was speech?
The first men to opine that restricting money in politics is unconstitutional on First Amendment grounds were Ralph Winter Jr. and his student, John Bolton.2 Winter was a jurist who went on to have a celebrated career in law. Bolton is well-known today as former President Trump’s National Security Adviser. They were part of a conservative wave that hoped to push back against the liberal rulings of the Warren Supreme Court. Traditionally, the First Amendment had been viewed as a protection of unpopular speech from religious or political minorities. It’s application to campaign finance was a novelty.
Winter’s argument was that limits on a candidate spending or on donations to political campaigns were entirely arbitrary. Money, having no value in itself, only regulates what resources a campaign can buy. But campaigns inherently have unequal resources. Take, for example, volunteer support. Candidates attract different levels of volunteer support, and those that can attract housewives, students, and faculty—people with more free time—have access to labor that others do not. Why not regulate that too? Singling out money favors other types of resources and discriminates against those who can contribute only money. In conclusion, limiting contributions and expenditures “does not equalize political opportunity; it simply aggravates all other inequalities.”2
It was a powerful argument. It gave opponents of reform something they never had before, a legal argument based on political theory. With this in hand, a varied group mostly composed of conservatives and fiscal libertarians took the FECA to the Supreme Court. It signified the start of a steady backslide on what was previously so self-evident that the 1907 Senate didn’t bother justifying it.
Supreme Court Decisions
The first of the notable cases was Buckley v. Valeo (1976), the challenge to the new FECA provisions. Under its view of money-as-speech, the appellants (suing party) sought to dismantle the entire apparatus of campaign finance legislation except disclosure rules. Their argument was that disclosure and anti-bribery laws were enough. The appellees said the point of the FECA was to “to curb the undue influence of a wealthy few on candidate positions and government actions.”
The court agreed that preventing corruption was important, but narrowly defined corruption not as undue influence but as quid pro quo. Going forward, money would be tied to the First Amendment, and anti-corruption measures to stop quid pro quo would be the only constitutional reason for regulating spending. Independent expenditures by others on behalf of a candidate was not believed by the court to cause corruption. Caps on how much a candidate could spend were also found to be unrelated to corruption and therefore unconstitutional. Suddenly, candidates could spend as much as they wanted, and others could spend as much as they wanted on them.
It’s in the court’s very narrow interpretation of corrupt behavior that the issue lies. Proving to a jury that large spending on behalf of a candidate establishes a quid pro quo is essentially impossible. Politicians can always say that large expenditures by corporations are merely smart business leaders backing great policies, and some probably are. But if everything is a coincidence of beliefs aligning, then nothing is corruption. The Solicitor General under Nixon and Ford, Robert Bork, put it best:
Such promises can be implied as well as expressed; such prospects can be imagined as well as real. As a result, much money will change hands for reasons that border on, or appear to be, bribery but are not; much real bribery will not be provable in a court of law.2—Robert Bork
Buckley v. Valeo was just the beginning. It was followed by several rulings that expanded the new Supreme Court reasoning. First National Bank of Boston v. Bellotti (1978) further expanded corporate rights. Massachusetts announced a change to their income taxes would be on the ballot. The state allowed spending for ballot measures if a company’s interest were involved. First National Bank, one of the biggest in the country, and Gillette, a Fortune 500 company, announced they would spend from the company treasury to fight the referendum. The attorney general said no, and the companies sued.
The companies argued they had First Amendment rights “coextensive with the … rights of natural persons.” The Supreme Court danced around the issue. They said the issue at stake was not whether corporations had First Amendment rights, but whether the Massachusetts law “abridges expression that the First Amendment was meant to protect.” The Supreme Court found that identity-based discrimination based on who was spending on issues was unconstitutional, as long as it was for a ballot measure, not for a specific candidate. Lumping both corporations and people under the broad banner of speakers, the court came dangerously close to declaring that corporations had the same First Amendment rights as people.
All of this falls under a concept that conservatives tend to dislike—judicial activism. There was no precedent for expanding these rights to corporations, and there is no precedent that the founding fathers considered them sovereign like they did people. Justice Powell, a Nixon appointee, delivered the opinion. He believed that “few elements of American society today have as little influence in government as the American businessman.” He proposed that an “activist-minded Supreme Court … may be the most important instrument for social, economic, and political change.” Seven years after writing those words, the court was steadily advancing the rights of corporate money in politics. By 1982, there were nearly 1,500 corporate Political Action Committees (PACs), up from only 89 in 1974.
The next case that bears mentioning, Austin v. Michigan Chamber of Commerce (1990), was not a win for corporations. However, it includes dissents that laid the groundwork to expand corporate rights in the future. The Michigan Chamber of Commerce wanted to use treasury money to support a candidate. Though it was a non-profit, voluntary group, which the court had previously decided could spend from their treasury, it’s membership consisted mainly of for-profit corporations. Michigan said this circumvented corporate spending laws, and the court agreed.
A conservative minority made up of the three youngest justices—including Antonin Scalia and Anthony Kennedy—dissented. They broke with the older conservatives and enunciated a theory of corporate personhood. Scalia said that corporations were “voluntary associations of individuals,” no different than non-profits. This meant they had First Amendment rights. Kennedy went further:
There is no reason that the free speech rights of an individual or of an association of individuals should turn on the circumstance that funds used to engage in the speech come from a corporation. Many persons can trace their funds to corporations … in the form of dividends, interest, or salary.—Justice Anthony Kennedy
These words make up the backbone of what would become the court’s reasoning in the well-known Citizens United decision, which vested corporations with speech rights akin to those of citizens. It would take 24 years for Justice Anthony Kennedy to deliver the majority opinion in that case.
The Death of Regulation and the Birth of Citizens United
After the 1980s, something known as soft money inundated politics. The regulatory framework at the federal level was so loose that it allowed state parties to collect money outside of FEC oversight and then use it for federal campaigns. The RNC used this to finance Reagan’s campaign. The Democrats caught up. By the 2000 election, the parties were fundraising completely outside of any federal regulatory framework using soft money. The FECA was dead.2
Some legislators, recognizing that soft money and spending was getting out of control, began working on some way to reform it. After the Enron scandal, with Enron execs/company having donated $1.5 million in soft money to the Republican Party, there was enough pressure to act. Congress passed the Bipartisan Campaign Reform Act (BCRA) of 2002 (commonly known as the McCain-Feingold Act), which banned the use of soft money. It also banned corporations from running ads mentioning a federal candidate by name 30 days before a primary and 60 days before a general election.
The elimination of soft money brought FECA oversight back to elections. Although it has bipartisan in its name, most Republicans voted against it, and Senator Mitch McConnell led several filibusters to kill the bill. When it passed, he challenged it before the Supreme Court. In McConnell v. FEC (2003), a 5-4 decision saved the law. Three judges appointed by Republican presidents voted with the liberals. Two would retire by 2010, when Citizens United would be decided. Their seats were taken by John Roberts and Samuel Alito, who formed a new conservative majority more hostile to regulation than any in the past.
In 2008, a non-profit corporation called Citizens United produced Hillary: The Movie. The film is a mixture of valid criticism of Hillary Clinton’s record and overreach by her political opposition. Citizens United existed (and continues to exist; their director was Trump’s deputy campaign manager) in a very privileged position in the world of campaign electioneering. They are a 501(c)(4) corporation under the tax code. This designation is meant for nonprofits that promote social welfare. It allows their money to be tax exempt if their primary activity is not political. Defining and regulating what is a primary activity is not simple, and it allows these organizations to get away with massive amounts of political spending. On top of that, they don’t have to reveal who funds them. They are a source of dark, unaccountable money, all of it legal.
The company had already distributed the Hillary movie in theaters and on DVD, but wanted to use their treasury funds to make it available to watch on cable. The FEC said no. Since Citizens United accepted corporate money, the Mccain-Feingold Act did not allow for electioneering communications within 30 days of a primary. The Supreme Court heard the case in 2009 and five conservative justices asked for supplemental briefs on whether the court should overturn the recent McConnell decision that saved the BCRA, and the Austin decision. This was an extremely aggressive move by the court, as the Citizens United corporation was suing for reasons that had nothing to do with the Austin decision. The Citizens United case was about using funds to run an ad too close to an election; the Austin case was about the Michigan Chamber of Commerce using treasury funds for political purposes.
The court decided to overturn both McConnell and Austin in a 5-4 decision. It was an explicit break with the legal principle of stare decisis, respecting precedent and letting it stand. For over a century, despite chipping away at regulation since the 1970s, the Supreme Court had agreed that limiting corporate money in campaigns was a worthy goal and in the government’s interest. The majority now created an alternate history, in which they were merely bringing the law back in line with “ancient First Amendment principles.” They reasoned, based on Scalia and Kennedy’s Austin dissent, that corporations were voluntary associations of citizens. From this followed that there was no compelling constitutional reason why, if the individual could speak and spend, an assembly of people speaking with one voice should not be able to. In essence, corporations had some sort of personhood that bestowed them First Amendment rights, hence the “corporations are people” tag that popular culture attached to the case. The court ruled that independent political broadcasts funded by corporate money could not be limited.
Justices Scalia and Stevens addressed arguments directly to each other. Scalia issued a challenge, stating that it was the minority who had to prove that the First Amendment did not apply to corporations. He said the text of the constitution makes “no distinction between the types of speakers.” Therefore, instead of placing the burden on the appellants to prove their speech should be included, it was up to the minority to prove corporate speech was not included.
As the dissent from Stevens pointed out, this conclusion was novel and fanciful. A corporate First Amendment wonderland had never existed; that was an idea arrived at by working from a conclusion backwards. The founders had been deeply suspicious of corporations at the inception of the republic. Nearly all corporations were charters granted by state legislatures that fulfilled societal and defined needs such as constructing bridges or providing insurance. For the majority’s argument to be believed, one would have to assume that every time a state granted a charter for a new corporation, they were cognizant that, constitutionally, they were creating a legal entity with First Amendment rights similar to those of people.
According to Justice Stevens, the majority opinion overlooked decades of precedent. For example, the court had upheld First Amendment restrictions based on the identity of the speaker. Government employees, students, members of the armed forces, and convicted felons all have speech restrictions placed upon them that were deemed constitutional. Additionally, corporations could be managed by foreigners and represent the interests of non-citizens. Foreigners also have limited speech in our political system, they cannot donate to any candidate, party, election, or corporation that engages in electioneering. Under Citizens United, foreign citizens and agents of foreign governments are given the ability to legally influence American elections monetarily via the money-as-speech First Amendment rights granted to corporations.
As for the argument that corporations are voluntary associations of people, it is perhaps the majority’s strongest. It’s appealing to think of corporations as having a well-defined social purpose, protecting the interest of their members which happen to be synonymous with corporate interest. The problem is that it’s a rosy, simplistic look at who corporations represent and what interests they serve. For starters, employees are not members and oftentimes have antagonistic relationships with employers. Higher wages may hurt the bottom line, benefits don’t necessarily increase when profits do, and the interest of one category of workers may conflict with another. Employees often own no company stock and can be fired for the sake of the company, or for no reason at all.
Corporate speech interests are therefore tied to the wishes of shareholders—that is their legal obligation. But shareholders are also not a voluntary association in the same way as traditional interests are. Labor unions, veterans groups, minority groups, and gender based groups are occupational or interest-based with a distinct, unique voice in public policy. We know who a plumber or firefighter union advocates for without having to do much digging, same as the National Association for the Advancement of Colored People (NAACP). Unlike corporations, the entire reason for the creation of these groups is that they advocate for principles and policy positions based on groups with common needs beyond the financial, such as working conditions, medical care, civil rights, or representation in government.
Corporations are not assembled to advance unique policy positions. Their primary purpose is keeping shareholders happy with the performance of their investment. Joining a women’s advocacy group is a commitment to a moral value. Buying corporate stock is a commitment to improving a financial position. If a women’s group overnight turns into an organization to repeal the Nineteenth Amendment, that runs contrary to its entire reason for existing. Corporations advocate for all sorts of political positions deeply unpopular to their shareholders (after all, most big shareholders have massive portfolios that include a variety of corporations with potentially incompatible goals). Ultimately, a shareholder will not abandon a company because it supported something they disagree with—they likely won’t even know. They will leave based on poor stock performance. It’s no coincidence that many Fortune 500 companies donate handsomely to both Democrats and Republicans without losing Democrat or Republican shareholders. Their campaign expenditures are not commitments to a principle, they are exactly what they seem to be: organizations buying access and favor. Citizens United solidified the legality of entities known as SuperPACs, which can collect unlimited amounts of money from individuals or corporations and spend it on ads for or against candidates as long as they do not coordinate with a campaign.
But overturning Citizens United would also not be a simple solution. One can believe that corporations are not people and should not get the money-as-speech rights of people but still want to protect the right of actual organizations of people from exercising collective political power via money. While SuperPACs are explicitly created to put money into politics, there are less morally grey associations of citizens that should be able to organize and act collectively, such as the aforementioned unions, NAACP, and women’s advocacy groups. While there are other vehicles for doing this, overturning Citizens United would make it more difficult for these kinds of citizen organizations to donate to political campaigns. Granted, these kinds of organizations are a drop in the bucket when it comes to money in politics compared to the ones looking to buy influence to increase profits, but it’s worth noting.
The Future of Campaign Finance Reform
Money inundated the 2020 election. Democrats increasingly turned to dark money, receiving more corporate money due to Trump’s broad unpopularity. They outraised their conservative counterparts for the second election cycle in this category. We saw Michael Bloomberg buy into the Democratic primary overnight by spending from his own deep pockets, something that would have been impossible under the 1974 FECA expenditure limits. Dark money from 501(c) organizations like Citizens United poured in at record rates to SuperPACs, and only 30% of outside spending came from groups that do full donor disclosure.
But even disclosure has its downsides. The intent of disclosure is to provide transparency and ensure that money is coming from real citizens acting on their own behalf. It is meant to prevent things like wealthy donors donating over the maximum by using a series of fake names (since the employer information can be used to verify identity). Since these records (provided by the campaign, who collects the information when they receive donations) are public, people can be criticized and retaliated against based on their political donations—a conflict between transparency for elected officials and personal privacy that has no simple solution.
The dangers of eroding trust in democracy and the appearance of corruption that many warned of during the 20th century have been realized. Confidence in government is hovering near an all time low. According to Pew, 69% of Americans believe elected officials face no consequences for misconduct. The current state of campaign finance ranks among the highest in dissatisfaction, with around 77% of Americans unhappy. This is often reflected back to us in public discussion, with super-wealthy political power-players wielding grotesque levels of power with the ability to conjure political movements and bring others under their thrall. The public no longer assumes that candidates and officials mean what they say. They are believed to be agents of an interest, or they were influenced by an agenda that someone financed.
This trend of increasingly expensive elections actively resists control. The current system gives corporations and unions both a sword and shield, allowing them to defend themselves against any assault through the law and cut through any opposition with funds. The court’s stance that corporate money is speech makes reform impossible. Outside of court packing (expanding the number of Supreme Court seats or rotating judges from circuit courts)—a politically dicey practice unlikely to be enacted—the court will likely strike down campaign finance legislation as unconstitutional. Neither party seems particularly interested in changing the system. The Democrats have begun to dominate the dark money game, and even if some parts of their coalition are loud about campaign finance reform, they are unlikely to spend time and political capital on something they know will face legislative and legal opposition. The Republicans are outright hostile to it. Their leader in the Senate, Mitch McConnell, has been a long-time vocal opponent of any reform, saying about Citizens United:
For too long, some in this country have been deprived of full participation in the political process. With today’s monumental decision, the Supreme Court took an important step in the direction of restoring the First Amendment rights of these groups.—Senator Mitch McConnell
Another way out is through a constitutional amendment, but the system is designed to make this exceedingly difficult. One can expect that incredible amounts of money would be spent to block it at all levels of government. Similarly, electing candidates who are honestly committed to reform is unlikely, as corporate money will be used to defeat them. Previous waves of reform have come about due to public pressure immediately following campaign finance scandals. The possibility of this happening today is slim, as the media picks up and drops controversies faster than anyone can mobilize around them. Traditional media is increasingly corporate itself; Jeff Bezos owns Washington Post, Comcast owns NBC, Disney owns ABC. It’s also not an easy issue to be informed about. Learning about PACs, SuperPACS, different kinds of tax exempt organizations, shell corporations, contribution limits, loopholes, dark money, and federal enforcement feels like taking a class that you didn’t sign up for.
There have been alternatives suggested. A publicly funded system is one. The United States had something resembling it, allowing taxpayers to give $3 of their tax bill to the treasury for the public funding of presidential campaigns. The program was optional, meaning candidates could opt in if they raised a certain amount of money from a variety of states. It was rendered useless, ironically, by private money. To receive federal funds, candidates had to agree to expenditure caps that they, flush with corporate cash, found limiting. Here lies the problem with public funding—it’s sometimes workable at a smaller scale but it doesn’t work when serious money pours in. Candidates can always opt out of them, and they do so when rich donors take an interest. In the 2014 Arizona gubernatorial campaign, future governor Doug Ducey opted out of Arizona’s public funding option and raised/spent significantly above what the program would have allowed. Nevertheless, something is better than nothing. Public funding does allow smaller candidates to get their message out there, even if it’s sometimes rendered moot by private money.
Still, the cause is not entirely lost. Bernie Sanders made campaign finance reform a huge part of his campaign. Andrew Yang suggested an equalizing federal funding program that would provide a $100 democracy voucher which individual Americans can donate to their preferred candidate. Nowadays, voters have more awareness regarding which groups are funding particular candidates and movements. This has made the prospect of campaign finance reform a popular agenda item. On a long enough timeline, it’s hard to stop the public from getting what they want, whether by vote or by violence. Hopefully, we all agree that change by vote is always preferred to change by violence. We should strive to make our voices heard by our elected officials when it comes to campaign finance. In the meantime, outside of a miracle, this is an anti-democratic nightmare that seems inescapable.
For more in-depth journalism on corruption in our US political system, check out our two-part series, Congress in Crisis: Assessing Our Broken Branch, Pt. I and Congress in Crisis: Assessing Our Broken Branch, Pt. II.
1. Jeffrey Pasley, “‘A Journeyman, Either in Law or Politics’: John Beckley and the Social Origins of Political Campaigning,” Journal of the Early Republic 16, no. 4 (1996): 531–69.
2. Robert Mutch, Buying the Vote: A History of Campaign Finance Reform (New York: Oxford University Press, 2016).
3. Tracy Campbell, Deliver the Vote: A History of Election Fraud, an American Political Tradition, 1742-2004 (New York: Carroll & Graf, 2006).
4. Melissa Smith, Campaign Finance Reform: The Political Shell Game (Lanham, MD: Lexington Books, 2010).
Editors: Craig Carroll, Stacia Wilson Peer Review Completed By 4 Individuals
I can’t help but wonder how scale of representation fits into this (the whole money to campaign thing)
So a single representative represents over 700K people in a district? We pretend they do, but they don’t actually. Most of the electorate do not even know who represents them because of this disparity of scale and just general apathy.
This is not an excuse for more privately funded campaigns in order to reach out to 700K people to get elected, rather, it is a reflection of how exasperated I am, and I think most people are, of a system that no longer represents its constituents.
I am no fan of the “metaverse” but I sometimes feel we already live in it.
Good point, Quentin. I was thinking on this the other day while listening to Andrew Yang’s podcast with Lee Drutman, author of Breaking the Two-Party Doom Loop. I really like the ideas of proportional representation and increasing the number of House representatives. I think these both hit the concern you’re raising.
Happy holidays to you, my friend!
Now, more than ever before, is a good time to change the ratio of representation. Remote meetings happen ALL the time now, and meeting in person is actually not desirable thanks to a pandemic. There is no good reason to have representatives fit in a building any more. Also antiquated is the need for a residence in Washington, D.C. If we required this new ratio-based representation them to meet in person, it would take a stadium. I hate to say this, as it might sound as if I’m joking, but George Lucas represented this in Star Wars. Granted, they were “senators”, but the idea is the same.
And if they really crunched the numbers, I bet the overall cost of getting elected would skyrocket if we had more representatives, but if we brought the ratio down to 1 per 200K at least it would be harder for corporate interests to buy votes. Granted this only applies to 1/3 of the U.S. government, but it’s an interesting thought experiment.
Well, the German legislature has 700 members in one house. The UK one has about 700 in each house. Interacting through screens has been proven to circumvent some of our social-cue-mediated interaction mechanisms, so I’m not convinced remote legislating is a good idea.