How to put US voters back in charge of their democracy
The Supreme Court's decision in Citizens United unleashed an era of unprecedented pay-to-play politics. Thankfully, steps can be taken to curb the outsize influence of big donors and super PACs and restore voters' trust in their political institutions.
New York — Four years ago today, the Supreme Court ushered US democracy into a new age of big money and pay-to-play politics. In Citizens United v. Federal Election Commission, the court ruled in favor of unlimited independent political spending by corporations and other outside groups, which ultimately led to the creation of "super political-action committees," or super PACs. The consequences were immediate and clear: Outside campaign spending exploded, making politicians more beholden than ever to their biggest donors, and creating an appearance of political corruption that threatens to further undermine voters' trust in US democracy.
Although overturning the Citizens United decision would be the most direct path to undoing big donors' newest power to secure special treatment, that is unlikely without a shift in the court's membership. For the foreseeable future, reasonable people will continue to debate the constitutional question of what kind of spending is protected by the First Amendment and who – or what – can exercise that right. The good news is that, even absent a new Supreme Court decision, other steps can be taken to restore protections against undue donor influence and voters' trust in their political institutions.
The problem isn't just that Citizens United has caused political spending to rise, although the $1 billion spent by outside groups in the 2012 election is more than the total outside spending reported in the preceding 30 years combined. It's also that the type of "independent" super PAC spending the decision encouraged is often closely tied to candidates themselves.
In 2012, super PACs run by former staffers and close advisers supported Mitt Romney, Barack Obama, and many other presidential candidates. The model will be ubiquitous in 2014. One legislator's former chief of staff now running a super PAC boasted: "I know the donors. I know his operation."
We need stronger barriers against coordination between candidates and "independent" groups. Close political advisers, longtime associates, or others with clear access to elected officials should be barred from running super PACs that collect money to spend on those officials' campaigns. This is an action Congress or the Federal Election Commission can take.
Voters also deserve to know who is trying to influence them. The Internal Revenue Service and the Securities and Exchange Commission (SEC) must help ensure there is clear disclosure of who is donating to independent groups. This will help give voters the information they need to understand exactly what a group is hoping to get out of a candidate's election.
In particular, the IRS needs to issue clear rules on what constitutes "campaign-related political activity" and ensure that organizations cannot use their tax-exempt nonprofit status to hide political donors. To its credit, the IRS has started this process by proposing new rules, but many details must still be worked out. The SEC must also consider a rule requiring public companies to disclose information about their political spending. Shareholders, and the public, have a right to know if corporations are pushing a political agenda.
But only comprehensive reforms to the structure of the campaign finance system can truly restore fairness, transparency, and accountability to US elections. The best way forward is legislation establishing a national public financing system that matches small donations. This will elevate the voices of average voters and allow politicians to avoid dependence on the biggest donors.
Pushing federal-level legislation through will be tough. But citizens can take action at the state and municipal level. In New York City, public campaign financing adopted more than 15 years ago has drastically changed the way candidates raise money: Instead of focusing almost exclusively on big donors, candidates spend more time raising small donations from people in their communities.
Candidates frequently claim to be unhappy about outsized, outside spending but say nothing can be done in light of Citizens United. Yet Democratic Sen. Elizabeth Warren and Republican Scott Brown defanged super PACs in their 2012 Massachusetts Senate contest when they signed the "People's Pledge," whereby each agreed that if either campaign benefited from a third-party ad, it would pay a penalty to a charity chosen by the other side. The result was a cessation of outside spending.
To be sure, the People's Pledge was a good idea, but it hasn't been replicated in a major contest. And relying on candidates to police themselves is not enough. Such agreements will not curb the growing influence of the biggest outside spenders. Broader systemic changes are still required.
In just four years, Citizens United has shifted US democracy drastically in favor of wealthy political contributors. Clearer coordination rules, stronger disclosure, and, ultimately, public campaign financing constitute common-sense solutions to help put average voters back in charge.
Lawrence Norden is deputy director of the Democracy Program at the Brennan Center for Justice at New York University School of Law.