"Ingratiation and access... are not corruption."
-- Citizens United v. Federal Election Commission
America is built on a foundation of governmental distrust. The very hint of a possibility of corruption is viewed with extreme negativity. There could be an extremely legitimate reason for donating million's to a candidate's campaign. Maybe we're being overly cynical in thinking that an individual or group would donate that kind of money without expecting anything in return other than a "faithful representation of the people in said politician's district," as the Supreme Court's Citizens United decision puts it. The Court's opinion stated "ingratiation and access... are not corruption."1 Contributions exist as protected elements of the First Amendment, expressions of individuals and organizations. In a much lesser discussed case, McCutcheon v. Federal Election Commission, the Supreme Court further discussed campaign finance issues and again pointed to the First Amendment when it struck down aggregate limits in campaign financing, limits on the total amount that can be spent across all campaigns.
By all accounts in the Court's opinions over the last 10 years or so, the only issue the Supreme Court has with campaign donations are quid pro quo related, that is to say, donations given directly to a political candidate. This, the Court says, represents the only specific type of corruption that Congress may target.2 In McCutcheon, the Court also says Congress may permissibly limit "the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions to particular candidates."3 But then in Citizens United, the Court says that "favoritism and influence are not... avoidable in representative politics," and justifies it by saying one of the only reasons to even contribute or vote for a particular candidate is because of the perception that said candidate will respond by providing political outcomes in favor of the supporter or voter.4
We've now come to a fine line. On one side, the Supreme Court is correct in the Citizens United ruling; the Bill of Rights in our Constitution guarantees all Americans freedom of speech and freedom of expression. The First Amendment is amazing for the very reason that good and bad can come of it, individuals can be good or douchebags. Equality and equality of opportunity means people have the option of being good or being douchebags. To limit speech and expression based on personal preference is a Very Bad ThingTM. Equality and equality of opportunity means the potential for good; societal benefit is there, douchebag or not.
On the other side of this fine line, it seems like anything that doesn't involve one entity giving a giant bag of money to another person in a political position cannot be considered problematic due to First Amendment implications. The Supreme Court feels that millions of dollars in donations to one candidate or another is not indicative of any real problem because favoritism is a natural part of politics. If a politician then votes for policy the benefactor(s) wished for, so be it. That's why they got elected after all.
Thus the chicken and egg problem we've run into. Did the politician have certain views before donations or were those views formulated after? Even if they received donations before their views manifested, the test of quid pro quo corruption would likely fail. All around us the perception of corruption in government exists, but because the Supreme Court uses the First Amendment to tell us there really is no corruption and that favoritism and such perks are a natural part of politics, our perception must therefore be unfounded when it comes to the laws of the land.
We need to fix this because no matter how much of a legalistically-bound non-perception there may be, the reality is that money, favor, and special interest ruin politics. Theodore Roosevelt's New Nationalism speech discusses this very subject-
"Exactly as the special interests of cotton and slavery threatened our political integrity before the Civil War, so now the great special business interests too often control and corrupt the men and methods of government for their own profit. We must drive the special interests out of politics. That is one of our tasks to-day. Every special interest is entitled to justice—full, fair, and complete,—and, now, mind you, if there were any attempt by mob violence to plunder and work harm to the special interest, whatever it may be, that I most dislike, and the wealthy man, whomsoever he may be, for whom I have the greatest contempt, I would fight for him, and you would if you were worth your salt. He should have justice. For every special interest is entitled to justice, but not one is entitled to a vote in Congress, to a voice on the bench, or to representation in any public office. The Constitution guarantees protection to property, and we must make that promise good. But it does not give the right of suffrage to any corporation."
Roosevelt's words echo the thoughts of the Supreme Court and the will of the people today. He balances these ideas perfectly. Fix the system so we ensure protection and justice for special interest while curbing their influence on our representation.
But how? How do we fix this? Roosevelt, unfortunately, fell short in this regard. Corporate interests ran high and still do. Lobbying dollars have gone down in recent years, but only officially.5 How much shadow money is out there we may never know.6 Even keeping track of all lobbyists may never be possible.7 And these unknowns are real problems. So how do we fix it?
The first and most ideal solution would be a Constitutional amendment to limit campaign donations if not eliminate them entirely. When we think of how far technology has come, with the internet and social media, it is very possible to run a very cheap campaign that reaches millions of people around the nation. I'm seeking to do that right now. It's easier to plaster ads all over the country, but the point is that the money in campaigning and politics right now is idiotic. It would have been better to spend the $6+ billion from the 2012 elections on the economy in support of our companies and citizen wages in my opinion. Think of all the new hires, new research, increased wages, and more than could have come about with $6 billion or even half that.8 But this solution is hindered by the very people chosen to represent us. The business of politics is too lucrative. There are career politicians who have never worked a day in the real world with the rest of us, preaching how they represent our interests while growing fat off pork and favorable treatment. Why give that up?
The second solution would be term limits. If states were to impose limits on their federal representation along the lines of "we the people of this state feel those who have been in office too long become preoccupied with reelection and, thus, fail in their duties as representatives" before limiting them to two terms, that would be good... in theory. But the Supreme Court crushed that idea in U.S. Term Limits, Inc v. Thornton back in 1995 when they affirmed a state's inability to impose term limits on its own representatives. It was deemed unconstitutional, a violation of the framework the Founding Fathers sought to preserve, namely that people should be free to elect whom they desire.9 And the last time Congress voted on term limits back in 2012, the Senate rejected it 24-75.
Thus we are back to square one. What can we do? Besides a Constitutional amendment, the answer seems to be... not much. The influence on government is too great. Special interest and lobbyists maintain a firm hold on matters at hand to the point where both parties are willing to work together to maintain their political clout, defying the will of the people. Until a more clever man than I can figure out how to skirt the First Amendment with campaign finance reform or until we can get a Constitutional amendment in place, there seems only one method to lessen the influence of money in politics.
Increase transparency, increase competition, and address the lobby problem plaguing our nation.
- Citizens United v. Federal Election Commission
- McCutcheon v. Federal Election Commission, section IV (A) citing Citizens United, 558 U. S. at 359, which cites Federal Election Commission v. National Conservative Political Action Commission, 470 U.S., at 497, 105 S.Ct. 1459.
- Citizens United v. Federal Election Commission citing McConnell v. Federal Election Commission at 297. What’s interesting is the McConnell decision from 2003 upheld the constitutionality of the Bipartisan Campaign Reform Act of 2002 (BCRA), which sought to curb soliciting and spending by national political party committees along with prohibiting the use of corporate funds to pay for broadcast ads clearly identifying a federal candidate within 30 days of a primary or 60 days of a general election. It’s also responsible for requiring candidates to claim responsibility for any campaign advertisement with the typical “I approve this message” quote. Less than 10 years later, the Supreme Court overturned a chunk of it through the Citizens United decision.
- OpenSecrets.org, Lobbying Database. Not only can you see totals spent in lobbying from 1998 through the present, but also parse the data by group, firm, industry, etc.
- OpenSecrets.org, The Shadow Money Trail. Discussion of many shadow/dark money happenings can be found in this section of the website.
- Auble, Dan, Waning Influence? Part 1: Tracking the Unlobbyist. The article speculates that forcing increased registration may have the opposite effect of driving lobbyists and special interests into more subtle or covert methods of doing business with government. While the legality may be questionable due to specific legalese of the Lobbying Disclosure Act (LDA) and other Acts, the morality of “hiding” such methods from the American people should be called into question, in my opinion.
- A fun exercise is to check out the latest federal budget from the U.S. Government Publishing Office at www.gpo.gov, review the outlays for a particular function or sub-function of the federal government, and then compare that to the amount of money spent on the elections. For example, the $6+ billion spent on campaigns in 2012 was more than the 2014 budget for general government legislative functions ($3.7 billion).
- U.S. Term Limits, Inc. v. Thornton.