No matter which way it goes on Tuesday, this election -- the first presidential contest since the U.S. Supreme Court let the dogs out in Citizens United -- has to be recognized as a disaster for democracy. In thousands of races, from the presidential down to statehouse races, an unprecedented influx of money has corrupted the electoral process.
Here are five dangerous trends in American politics that have manifested themselves this year.
1. Spending by "Outsiders." In Citizens United, the Supreme Court ruled that spending money is a form of freedom of speech under the First Amendment. And the court gave corporations the same "freedom of speech" that American citizens were granted by the Bill of Rights. That ruling, issued in January 2010, freed corporations and other inanimate entities from limits on influencing elections.
Of the record $2 billion raised and spent in the presidential campaign, close to half appears to have come not from money raised by the candidates themselves or their political parties, but rather from Super PACs: campaign organizations that are supposed to be completely independent of the candidates. No talking is allowed between the candidate and the Super PAC. But this "firewall" is a fraud on the voters. All it takes is a few sophisticated lawyers and a "wink and nod" approach for the candidate campaigns to communicate their strategy and desires to the "independent" campaign.
We're not really talking about "outsiders" here anyhow. The people running these operations are consummate insiders -- usually people who have worked directly for the candidates and parties in the very recent past. Strategists for the Romney campaign also consult with Karl Rove's Super PAC, American Crossroads, which is right down the hall. One of the pro-Obama Super PACs is run by two former White House aides.
2. "Issue" Advertising by Business Interests. The enormous spending reported for or against the presidential candidates by allegedly independent Super PAC supporters doesn't include expenditures for so-called "issue advertising": advertising propaganda dumped into our living rooms and pumped into our computers by political partisans who are able to skirt disclosure and other laws by discussing "causes" without actually urging a yes or no vote on a candidate -- even though it's obvious from the message who the ad targets.
In the post-Citizens United world, the lines are getting even blurrier: Business interests that want to explicitly influence candidate elections without revealing their identity have begun funneling money through nonprofit organizations set up for that purpose, an abuse of the laws granting tax-exempt status to social welfare organizations. For example, Citizens for Responsibility and Ethics in Washington was able to track $7.4 million in donations the Aetna, the health insurance company, made to two nonprofit organizations, and attacking lawmakers for supporting Obamacare -- at the same time that the president of Aetna was making public speeches in support of the law. But that is an exception: Sophisticated corporations can easily avoid disclosing their "donations" to ersatz non-profit organizations.
Corporations buying the courts. Most state judges are appointed by the governor, but must run for re-election or "retention." Increasingly, business groups who want favorable court rulings are challenging judges who have ruled against them or might do so. Big money -- tens of millions of dollars -- is pouring into judicial elections in half a dozen states on Tuesday, featuring the kind of nasty and deceptive 30-second ads that have polluted the airwaves in candidate races. Leading this attempt to stack the deck in the courts is the U.S. Chamber of Commerce, whose corporate members want to elect judges who will throw out consumer defective products and environmental protection cases. Confronted with well-funded challenges by a special interest, the judges can only defend themselves by raising money from... some other special interest.
This is not just tawdry, it's a devastating threat to our country. The judiciary is the one branch of government that is supposed to be insulated from partisanship -- where decisions are made based on the rule of law, not political considerations. A series of rulings by the current U.S. Supreme Court -- Bush v. Gore, for example, Citizens United, and even its decision upholding federal health care reform (read the fine print) -- have already undermined that principle; public disapproval of the high court, once held sacrosanct, now approaches 40 percent. Once the American people lose confidence in the integrity of the judicial branch, democracy itself is in jeopardy.
4. The Millionaires Club. Let's say you want to run for public office because you want to help solve America's problems. And you aren't beholden to anyone; in fact, corruption is one of the problems you want to solve. There are lots of Americans of all political stripes who would want to serve their country. But with so much corporate money in politics, how are people who are not in the pocket of some special interest able to run? You have to be rich! Nearly half of the U.S. House of Representatives, and two-thirds of the U.S. Senate, are millionaires, according to a study published last year.
It's tempting to think that the wealthy will better serve the public because they have no need to raise money from special interests, but we in California learned the hard way that that is not necessarily true: "As you know, I don't need to take any money from anybody," then-action movie star Arnold Schwarzenegger told Jay Leno back in 2003. "I have plenty of money myself." The next year, Schwarzenegger ran for governor to replace Governor Gray Davis, who was widely criticized for his incessant fundraising. As governor, Schwarzenegger broke Davis's fundraising record.
The disparity in wealth between elected officials and the people they are supposed to represent is at least partly why America's economy is in terrible shape today. When Wall Street and Washington got together, few public officials were willing to oppose the deregulatory policies that led to the financial crash in 2008. (Download our report on the Great Betrayal here.) It's the reason why, when Congress passed credit card reform, the piece most important to average Americans was missing: a cap on interest rates. The experience of being a member of the middle class, or poor, isn't a reality for most of our elected officials. The rest of us pay for that.
5. Your vote, nullified. Supporters of the Wild West approach to political funding like to point out that the voters still have the last word. Corporations ostensibly can't vote -- at least not yet. But take a look at what has happened: The average American has little possibility of running for office when up against well-funded candidates beholden to special interests. We have freedom of speech, but unless you own a TV station, your views are drowned out by billions of dollars in paid advertising. Meanwhile, pocketbook issues of profound import for the middle class -- international trade, Social Security -- are off the table -- hardly debated by the candidates, so as not to offend the powerful. Voters today have been reduced to spectators: We are presented with a slate of candidates and causes by way of 30-second commercials, and we have to hope we can discern the truth.
There is only one solution to this crisis: a constitutional amendment to restore our democracy to the people. Here's our formulation of the 28th Amendment to the Constitution:
"The protections of the First Amendment that apply to the spending of money on lobbying and elections, whether by contributions, expenditures or otherwise, shall extend only to human beings."
Whatever the outcome tomorrow, this is the campaign all Americans need to get behind.