This past presidential election campaign demonstrated that the Supreme Court has bequeathed to America the worst of all campaign finance regimes -- upholding campaign contribution limits to candidates, while striking down all independent spending limits, including restrictions on corporations.
The result of this combination of judicial decisions was not, as many had feared, that Democrats would necessarily be overwhelmingly outspent. Looking just at the presidential campaign in the swing States, almost as much money was spent on pro- as on anti-Obama ads. The Washington Post reported that in the battleground States, $396 million was spent on pro-Obama ads and $472 million on pro-Romney ads, during the presidential campaign. (Actually, almost all of this money was really anti-Romney and anti-Obama, since it was overwhelmingly spent on attack ads). Even this difference in overall amount favoring the Republicans should not be taken at face value. The Obama campaign undoubtedly could have spent more on ads and chose to spend considerable resources on get-out-the-vote operations that greatly affected the final result, instead.
The major difference in spending on ads was that pro Obama ads were mostly run by the Obama campaign, as a result of huge numbers of the relatively small campaign contributions allowed by law. Conversely, only about half of the anti-Obama ads were run by the Romney campaign. The rest were run by nominally independent groups, dominated by a small number of conservative super PACs.
This super PAC spending was not primarily the result of the Citizens United decision. While a small portion of the contributions to independent groups was union and corporate, mostly the money was given by wealthy individuals. For example, Miriam and Sheldon Adelson contributed many millions of dollars during different phases of the campaign, including a reported $10 million dollars in contributions to the Romney associated super PAC, Restore Our Future. Even before the Citizens United decision, the Supreme Court had held that this type of individual contribution and spending could not be restricted under the First Amendment. The only requirement for this protected status is that the group's spending not be coordinated with that of any candidate.
So, even if Citizens United could be overturned, the current system of "independent" groups spending vast sums raised from individual contributions would not change substantially. And now that super PACs have seen that their spending can affect Senate, House and State elections, they will raise and spend much more money in the future.
This independent spending is threatening American democracy. Unlike others, I am not bothered by the amount of money that is being raised. The actual threat is that the money, and its donors, are invisible and the spending is democratically irresponsible.
It is invisible in the sense that the spending and its sources during the presidential campaign never really penetrated the public consciousness. If, instead of the current system, the Adelson's had been lawfully permitted to give millions of dollars directly to the Romney campaign, those large contributions would have become a campaign issue, solidifying the Obama narrative that Romney served the interests of the rich. Instead, the Adelson's remained substantially behind the scenes.
In addition, this independent spending is irresponsible, in the sense that a candidate is not permitted by law to control either the message or the manner of the advertising that these groups engage in. This year, there was not that much difference between Romney ads and super PAC ads supporting him. But, as we all remember, in 2004, when the group "Swift Boat Veterans for Truth" unfairly attacked the military record of Democratic Party presidential nominee John Kerry, President George Bush could accurately claim that under the law, that spending was independent of his campaign and he could say nothing about it without violating campaign finance laws. And even in 2012, Restore Our Future savaged former speaker of the House, Newt Gingrich, in the South Carolina primary and Romney never had to accept responsibility for the attacks.
In the future, there is even the possibility that outside groups will begin to wage their own kinds of political battles, taking the entire thrust of elections away from the candidates whom the voters are supposed to be evaluating. This will happen when national super PACs begin spending large sums on local races. These groups, and not the candidates, will begin to control the narrative story lines and the issues discussed in elections.
But, what can be done? Even if we agree that corporations should not have the constitutional right of free speech, wealthy individuals must have that right. Their spending and political influence cannot readily be reduced.
That is why I propose that all campaign contributions limits be eliminated. PACs were originally created as a way around the $2500 contribution limit in presidential elections. What would happen if there were no such limits? Certainly the total amount of spending would not go up. The rich are already spending large amounts to influence elections.
If contributions limits were eliminated, one of two things would happen. If the wealthy gave their money directly to the candidates, the voters would see this and could judge for themselves what these people thought they were buying. If, in the alternative, the rich continued to contribute to independent groups, the voters could ask why a candidate was not sufficiently forceful to control his or her own supporters. And if those supporters were unfair in their ads and activities, the candidate could be held to account. No longer could a candidate claim that the spending was by law independent.
Best of all, even though the current system of independent groups favors Republicans, they are bound by their own rhetoric to support the elimination of campaign contribution limits. Consistently, Republicans have opposed such restrictions in the name of free political speech.
Thus, by a simple change, easily accomplished, America can have a fairer democratic system in which the power of invisible and irresponsible money will be reduced.
The regime of campaign finance limits has been a failure. The only part of the effort that remains -- contribution limits -- is now responsible for increasing, rather than limiting, the power of money in elections. Given that reality, now is the time to eliminate all such contribution limits.