America today has dueling campaign finance systems for federal elections.
One system, in existence for more than 40 years, provides contribution limits and disclosure requirements for federal candidates and political parties spending money in federal elections. This system was enacted by Congress and upheld by the Supreme Court to prevent corruption and the appearance of corruption.
The second system was established six years ago today by the Supreme Court with its Citizens United decision. This system permits unlimited contributions and secret money to be spent by outside groups. Since the 2010 decision, more than $1.5 billion in unlimited contributions, including more than $500 million in secret contributions, have been spent in federal elections.
This kind of unregulated campaign finance system has resulted in massive corruption scandals in the past. It will do so again in the future.
Citizens United has brought an onslaught of big money from the Super Rich who are treating federal campaigns as their political playground.
The American people strongly object to this result.
A New York Times/CBS poll (June 2, 2015) found that 85 percent of the public supported fundamental change or a complete overhaul of the campaign finance system. A Bloomberg News poll (September 28, 2015) found that 78 percent of the public are in favor of overturning the Citizens United decision.
We cannot eliminate big money from our elections until Citizens United is overturned, as it surely will be one day. There are, however, major steps that can be taken to counter and combat the role of big money in American politics.
There are new ways that would empower ordinary Americans to play a dramatically increased role in financing our elections.
They include:
-- Enacting legislation to create a public financing system for presidential and congressional elections; and
-- Developing ways in which new technologies can unleash a small donor revolution in American politics.
A public financing system for presidential and congressional elections in which citizens direct the distribution of public funds by providing small contributions to candidates that are matched with multiple public funds would empower and engage ordinary Americans. The system would make donors' small contributions far more valuable to candidates, would dilute the impact of big money and would provide an alternative way for candidates to finance their campaigns without becoming obligated to influence-seeking funders.
Legislation is currently pending in Congress to revitalize the presidential public financing system that served the nation well for more than two decades and broke down because Congress failed to update the system to deal with the greatly increased costs of presidential campaigns. Legislation is also pending in Congress to create a small donor, public matching funds system for Congressional races. (For information about these and other bills discussed here, visit www.democracy21.org.)
The Internet, smart phones, apps, social media and other new technologies have made disruptive and revolutionary changes in virtually every sector of our society and can do the same to disrupt and revolutionize the way our campaigns are financed.
The new technologies can make it much easier for small donors to contribute and to organize contributions for candidates from their online communities; for newcomers to explore the possibility of running a viable campaign; for citizens to build social networks of like-minded donors to provide online contributions; and for citizens to participate in the political process.
This use of technology has the great advantage of being outside the current polarized, political system. It does not require legislation to be enacted and does not face being obstructed by a hostile Supreme Court.
Comprehensive disclosure legislation can end secret money in our elections.
President Obama can make an important disclosure breakthrough by issuing an executive order to require government contractors to disclose the funds they give to third party groups making independent expenditures. This would be the first new federal disclosure requirement since the Citizens United decision opened the door to secret money in our elections.
Ultimately, however, comprehensive disclosure legislation is necessary in order to close the gaping disclosure loopholes that have allowed hundreds of millions of dollars in secret contributions to be laundered through nonprofit groups into federal elections.
In 2010, the House passed a comprehensive disclosure bill but the bill fell one vote short in the Senate of the 60 votes need to break a Republican filibuster. That legislation is still pending in Congress. Since 2010, congressional Republicans have blocked all efforts to pass disclosure legislation.
The stonewalling on disclosure by congressional Republicans is in direct conflict with the overwhelming view of Republicans around the country. According to a New York Times/CBS News poll (June 2, 2015), "Three-quarters of self-identified Republicans support requiring more disclosure by outside spending organizations."
Individual-candidate Super PACs are used to circumvent candidate contribution limits and they can be shut down.
Individual-candidate Super PACs support one candidate, are controlled by close associates of that candidate and raise and spend unlimited contributions to support that candidate. They allow a candidate and the candidate's supporters to circumvent the $2,700 limit per election on the amount a candidate's campaign can receive. They give a candidate the direct benefit of unlimited contributions spent on their behalf.
Individual-candidate Super PACs can be shut down by legislation that properly defines coordination between a candidate and a Super PAC to include the factors that establish the close ties between the candidate and Super PAC, such as the Super PAC being controlled by close associates of the candidate.
Once coordination is established, all future expenditures by the Super PAC would also be treated as coordinated expenditures by the legislation. Coordinated expenditures under existing law are also in-kind contributions and are subject to existing contribution limits, which in the case of PACs are $5,000 per year given by a PAC to a candidate. Thus the legislation would restrict spending by the Super PAC to support the candidate to no more than $5,000 per year.
The Federal Election Commission's failure to enforce the campaign finance laws gives license to ignore the laws and demonstrates the need for a new real enforcement body.
The FEC is a dysfunctional agency which fails to properly interpret and enforce the laws. Three Republican Commissioners on the six-member agency repeatedly use 3 to 3 votes to block the professional staff from undertaking enforcement actions.
Candidates, campaigns and political operatives know that they can pretty much do whatever they want without any concern that the FEC will take action against them. The absence of FEC enforcement sabotages existing campaign finance laws and will do the same for new laws until the enforcement process is fixed.
Legislation will be introduced shortly in the Senate to create a new, effective enforcement body. Legislation pending in the House would make a number of changes in the existing FEC.
There are other legislative reforms that can be made to address the problems caused by the Supreme Court's McCutcheon decision and by provisions snuck into the 2014 Omnibus bill that did enormous damage to party contribution limits.
Those who argue that major legislative reforms cannot be enacted today are right, but those who argue they can never be enacted are wrong. History shows that major campaign reforms were enacted in the 1970s and 1990s following major scandals. Given the current corrupt campaign finance system, major scandals are bound to occur again.
The largest national reform movement in decades already exists and is rapidly growing. National polls show that citizens across the ideological spectrum overwhelmingly object to the current campaign finance system. Twelve national reform organizations have developed a "Democracy Agenda" that is being used to build support for campaign finance reform in the 2016 federal races.
The opportunity for major campaign finance reforms will come. When that happens, concerned citizens, national and local groups, grassroots activists, opinion makers and reform leaders in Congress, among others, must be ready to strike and to successfully create a new campaign finance system that reflects the interests of all Americans.