The single most important change in American politics today is not the rise of Internet-driven, small-dollar contributions. It is the SuperPAC. The Net may have fueled Obama in 2008. (It almost gave us Howard Dean in 2004.) But all that is old school now — completely professionalized and, in the end, not the most important. What is important is the big contributions, not the small.
What is important is not Paypal, but a brand new version of a very old game — pay to play.
It astonishes me that this is a controversial statement. But it is. After 2012, many pundits declared that SuperPACs didn’t matter. Things in 2013 looked much as they did in 2012. And anyway, as speech absolutists on the right and left insist, all SuperPACs do is enable more political speech. What could possibly be bad about that? Who in America is against free speech? And who would dare to suggest that in America, “free speech” — especially political speech — should be regulated?
What’s clear is that we’re confused about just why SuperPACs are a problem. But once we unpack that confusion, the poison that SuperPACs spill into our democracy will be obvious, and the urgency of reforming them should be clear.
The Path to SuperPAC ‘Democracy’
In 1976, the Supreme Court declared that the First Amendment gave rich people the right to spend however much they wanted to influence political elections — so long, at least, as that influence was “independent” of a political campaign.
Most rich people didn’t get the memo. Although even then, the number of super-wealthy in America was great (nowhere close to today, but still), the number who chose to use their money to influence campaigns was tiny.
The reason is pretty obvious once you think about the social dynamic. There’s something embarrassing — for any of us, rich and not alike — about spending money to move your ideas to the front of the line. For the rich recognize what most of us are thinking: Who are you to tell us who we should vote for? Why would you know any better than I? Sure, if you’re Jeff Bezos, we’d love to know your views about how to make the Postal Service work better. But why would we care what you think about climate change? Or the increasing use of antibiotics in agriculture?
The rich get this, and, in the main, they stayed silent. There were important exceptions, of course — dramatic exceptions. In 2004, using the device du jour, the “527,” both liberals (George Soros and Peter Lewis) and conservatives (T. Boone Pickens) entered the presidential campaign in an aggressive way. But on the whole, large independent expenditures by the super-wealthy didn’t matter that much to the way American politics progressed. The freedom of the rich to speak as loudly as they want thus seemed a small price to pay for the benefits of a simple and strong First Amendment. Few like the Nazis marching in Skokie, just like few like to be lectured by billionaires. But if these are the costs of a system of free speech, so be it.
In 2010, however, the Supreme Court upped the ante. In Citizens United v. F.E.C., the Court secured to unions and corporations the same freedoms it had given to rich people. If there was no justification for silencing the independent speech of the rich, there was no justification for silencing the independent speech of corporations or unions — or so the Court reasoned. The presumption, in America, was freedom. Congress had not identified a sufficient reason to defeat that presumption.
Most of us reformers thought Citizens United would change the world. We imagined corporations spending billions to influence political elections. (Immediately after the decision, Jeff Clements of Free Speech for People warned: “In the next election cycle, if the top 100 [corporations] spend even 1 percent of their profits … they will have more than doubled the federally-reported disbursements of all American political parties.”) I was certainly among those who were terrified. While in my writing and speaking, I continued to insist that there was a much more fundamental problem at issue — how we fund campaigns — I was quick to join the chicken-little chorus in predicting that Citizens United would create a radical change in the politics of America. We were smart, and we were certain — Citizens United was the devil.
But we were wrong.
Citizens United certainly has mattered, but not in the way that many of us predicted.
It turns out that most corporations are just as shy as most rich people. (This isn’t so true with unions, since being political is more naturally tied to the idea of a union.) Only a handful of publicly traded corporations embraced their newly secured freedom to spend whatever they wanted to influence political campaigns, at least openly. When they did, activists on the other side showed them the high costs of free speech. Target, for example, suffered a heavy backlash for supporting an anti-gay rights candidate for governor in Minnesota. In 2012, very few for-profit corporations spent any money on political campaigns at all. And as corporate scholars demonstrate more and more firmly that political spending by corporations negatively affects shareholder value, the market will provide a fairly effective check on corporations becoming politicians.
Yet Citizens United did make possible a decision by a lower court that really did change the world. (And here, there is data to prove it.)
In March, 2010, three months after the Court had decided Citizens United, one of America’s greatest circuit court judges reasoned that if rich people could spend as much as they want independently of any political campaign, they should also be free to contribute as much as they want to any independent political action committee. “Independence” became a new First Amendment shield; so long as your activity is not coordinated with a political campaign, your activity — whether speaking or spending or contributing — cannot be regulated.
This was the SpeechNow v. F.E.C. case, and based on its reasoning, the Federal Election Commission created the SuperPAC: With a simple letter and a couple-page form, anyone is free to establish a SuperPAC. That SuperPAC is then free to accept unlimited contributions, and spend whatever it collects, so long as it does not coordinate with any political campaign.
With this decision, the rich have finally found their voice — and political consultants have discovered a gold mine. Independent spending skyrocketed in 2010 and 2012.
And though there were skeptics who questioned whether this change was really tied to Citizens United, as campaign finance guru Rick Hasen put it in Slate, if that dramatic rise in outside spending wasn’t related to these legal changes, then “we have a mighty big coincidence on our hands.”
But at the core of the reasoning of the case that gave us the SuperPAC, SpeechNow, lies a critical mistake. Against the background of campaign regulation in 2010, one could be forgiven for making that mistake — what has happened since wouldn’t have been obvious then.
Yet now, four years into the experiment that SpeechNow launched, we can see precisely the harm that SuperPACs created, and the urgency to undo the mistake that created them.
What SuperPACs Do
Imagine you’re a candidate running for political office. Your finance director gives you a choice. You can either try to raise at total of $100,000 from a thousand people, or you can try to raise $100,000 from one person. (Under federal law, no one can actually give a candidate a contribution of $100,000 [yet], but you’ll soon see why that detail doesn’t matter for the argument I’m making here.)
Which would you do? Which strategy would you select?
Campaign fundraising is a business. It has a business model. That model depends on the size of the maximum permissible contribution. The higher the maximum, the fewer from which a candidate will raise money. The lower the maximum, the more from which the candidate raise money. Not because a dollar from the rich is worth more than a dollar from the poor, but because of time: Politicians already spend too much time raising money. If they can raise that money in larger bites, they will.
The experience in the states confirms as much. As the Montana Supreme Court found, drawing on evidence submitted by Edwin Bender of the National Institute on Money in State Politics, “the percentage of campaign contributions from individual voters drops sharply” when there are no limits on corporate spending compared to states with such limits. As Bender has written elsewhere, “contribution limits play a crucial role in … increasing the participation rate by small-dollar donors.”
This business model offers a clue to the puzzle I just posed: While there will be exceptions, in the ordinary case, between all of the 1,000 who could give you up to $100,000 and the one who could give you $100,000, the rational fundraising strategy is to focus your time on the one. You can dance and shape-shift all you want, but you’re never going to get all of the 100,000. Yet there are plenty of ways — if you’re an incumbent, at least — to get the one. Some of those ways are illegal. But the most effective ways are not. Given the range of opportunities for influence within the United States government today, there are plenty of perfectly legal ways to give the $100,000 contributor a more than adequate incentive to contribute.
Because of this, the rational strategy is simple: Hunt the whale, and leave the shrimp.
This fact has consequences: As the effective maximum for contributions rises, over time, and across campaigns, the number of relevant funders of political campaigns will fall. Especially for low visibility campaigns, like congressional races, candidates will focus on fewer and fewer “funders” of campaigns, because with each big catch, candidates can cover much more of their campaign costs.
I say “they focus” on these large funders, but I don’t mean that the campaign ignores everyone else. To the contrary, here is where the Net does play a powerful role. Campaigns are increasingly focused — with amazingly sophisticated technology — on sweeping up small contributions as much as they possibly can. The lesson these campaigns are learning is that the best way to do this is by being as polarizing as they can. Senator Chris Murphy (D-CT), the Senate’s youngest member, reports that when they send out an email to their list attacking Republicans, they receive three times as much as they receive when they send an email praising Democrats. Polarization pays — which is why no one should be surprised that polarization in American politics is increasing.
But still, the big money is elsewhere. Even with these new small-dollar techniques, candidates for Congress raise a tiny proportion of their funds — 15 percent — from small dollar contributors. The real money comes in big bites, from the “relevant funders” of campaigns: funders who give enough to make their particular views — about financial regulation, or tort reform, or climate change, or copyright — relevant to the candidates who are pitching them.
Already in 2010, the number of those “relevant funders” was tiny. As I calculated it, no more than 150,000 would have been on the radar of most candidates for Congress. That number, it turns out, is just about the same number of Americans named “Lester.” (See “The USA is Lesterland.”)
That number is about to fall even more. Earlier this year, in McCutcheon v. F.E.C., the Supreme Court removed aggregate contribution limits from campaign finance regulation. The rich are now “liberated” from the shackles of a $126,000 aggregate limit on political contributions. Now they can give (according to some calculations) up to $3.6 million. Parties are already focused on how best to leverage these pockets now thirty times deeper, to fund as many campaigns as they can. As they increasingly focus on the whales, the need for shrimp weakens even more.
The next step towards campaign finance anarchy is already in the works. Federal courts are already considering cases that demand the elimination of contribution limits on direct contributions as well. If the anarchists achieve that victory too, we will have entered the world that I described in my hypothetical (and which characterizes many democracies around the world already):
Campaigns will be funded by a truly tiny few.
“But what does any of this have to do with SuperPACs?” the law geek asks. “SuperPACs don’t coordinate their spending with campaigns. What does the business model for direct campaign funding (with the consequence that fewer and fewer get recruited as contribution limits get removed) have anything to do with SuperPACs?”
The answer to this question wasn’t obvious to the judges in 2010. But it was obvious to the politicians. I didn’t see it at first. But in November 2011, the link was drawn as clearly as it could have been, in perhaps the most illuminating exchange that I have ever seen about the effect of SuperPACs on our democracy.
Former Senator Evan Bayh (D-IN) was being interviewed by the late Senator Arlen Specter (D-PA) for a PBS pilot about the effects of money in politics. John Samples, vice-president of the Cato Institute, a libertarian think tank, had just suggested that there was no clear evidence that money affected results in Washington. If there was an effect, Samples said, it was at best uncertain. Bayh was asked whether, based on his twelve years of experience in the Senate, he too was uncertain about money’s effect.
He was not. To the contrary, based on his experience, Bayh was confident that he understood its effect.
SuperPACs, Bayh said, have produced a distinct dynamic — one generated by fear.
The single greatest fear of any incumbent is that thirty days before an election, some anonymously funded SuperPAC will drop $1 million against him.
When that happens, there’s little the incumbent can do. He can’t then turn to his largest contributors — by definition, they have all maxed out and can’t, under the law, give any more. So in anticipation, the incumbent must line up support — or let’s call it protection. In light of the risk that the incumbent will be targeted, the incumbent needs a kind of assurance: If she needs a defense, there will be the resources to defend her.
Bayh didn’t use these words, but let’s call this assurance “SuperPAC insurance.” It’s not technically “insurance”; it’s not issued by an insurance company, and there’s no cash premium collected in advance. But it functions like insurance, and indeed, like any insurance, there is a premium of some sort that is collected in advance. Because if you’re going to convince a SuperPAC to be there when you need them, you need to signal that you’re the kind of incumbent they want to protect. “They’d love to support you, Senator, but they have a rule that they can’t support anyone who doesn’t get a 95 percent on their score card.” So the rational representative has a clear goal to work towards — 95 percent or better — long before he actually needs anyone’s money. Thus, without a single dollar changing hands, the SuperPAC achieves its objective: bending Congressmen to its program, through the expectation of a defense if a defense is necessary. It’s a dynamic that would be obvious to Tony Soprano or Michael Corleone — even if it was missed by some of the best federal judges in America and a big chunk of the reform community (including me!).
This leads to an inevitable result: As this process matures, members of Congress become dependent on a smaller and smaller number of funders. It’s not just the tiny number of “relevant funders” of campaigns directly. It’s the even smaller number of the super-rich who are funding the SuperPACs. In 2012, 132 Americans funded 60 percent of the SuperPAC money raised in that election cycle. That number will go up in 2014. Imagine it goes up by a factor of 250. Even then, the funders of these SuperPACs will represent no more than .01 percent of America.
What’s so bad about that? What’s the problem for a representative democracy with a system in which campaigns are funded by a tiny percentage of the nation?
Why Have Primaries?
A “primary” is a qualifying election. You need to win, or at least do well in it, to have a chance to run in the general election — the election that actually elects. In the history of American politics, primaries — where people vote with ballots just as they vote in the general election — are relatively recent. The first was in Minnesota in 1899. By 1915, almost every state had adopted it for at least some political offices.
The Progressives were the most important force pushing this spread. They saw it as the key to a more perfect democracy, a way to challenge the power of the party bosses and the corruption those bosses engendered. As Robert La Follette put it in 1901:
If between a citizen and the official there is a complicated system of caucuses and conventions, by the easy manipulation of which the selection of candidates is controlled by some other … power, the official will so render his services as to have the approval of such … power.
To avoid that distraction and the risks of corruption, the Progressives sought to remove the intermediary and link the people directly with elected officials.
In the south, however, the primary was deployed for much less egalitarian purposes. By the end of the nineteenth century, in the eleven states of the Old South, the Democratic Party was clearly dominant. Beginning in the twentieth century, it started to use primaries to select its candidates. These primaries, however, were not open to all citizens, regardless of race (and, of course, sex, but put that aside). Instead, these primaries were reserved to whites only. Sometimes explicitly — in Texas, for example, the law banned blacks from participating in the Democratic primary directly. Sometimes implicitly — through techniques like complex (and inconsistently applied) literacy tests, which made it all but impossible for blacks to vote in either a primary or a general election. Regardless of the technique, the result was the same: to exclude blacks from a critical step along the way of selecting candidates for public office.
The consequence for blacks wasn’t hard to predict. Removed from politics, politicians had little reason to respond to their needs. Schools were awful, access to public facilities was denied, and even the basic promise of protection against violence was all but irrelevant — at least if the perpetrator of that violence was white. Denied access to the political system, the political system was unresponsive to blacks.
America was, in effect, a caste system, with blacks denied the most basic rights of citizenship within what purported to be “a democracy.”
It’s hard for us today to imagine how anyone in good faith could have defended such a system. But many did, and even many who were not racists. The elements to their defense are pretty clear even today. The “primary” wasn’t “the election” — it was just a step on the way to an election. Along that way, the First Amendment gave citizens certain fundamental guarantees. Among these was the right “to associate.” All that the southern Democrats were doing — or so they insisted — was “associating” with whomever they wished, so as to select the candidates they wanted. They were exercising, as the Supreme Court put it in Grovey v. Townsend (1935), the “liberty to organize political parties.” That their “associates” were exclusively white wasn’t a concern for the courts, or the Constitution, any more than the courts, or the Constitution, have any concern with the mix of people I call “friends.” For again, the right to associate with whomever you want, for whatever (legal) reason you want, in America, at least, is fundamental.
Astonishingly, it wasn’t until 1944 that the Supreme Court finally found a way around that argument and abolished (in theory, if not immediately in practice) the white primary.
The move that made this reversal possible was a decision in 1941 that had nothing to do with the white primary. The issue instead was much simpler: Was a “primary” an “election” for purposes of the Constitution, and, therefore, was it the sort of activity that Congress had the power to regulate? Because if it was an “election,” then federal laws regulating vote fraud would apply to the primary; if it wasn’t, they wouldn’t.
This distinction between private activities, not subject to constitutional norms, and public, is important and continues to this day. If your extended family had a rule that you will decide before an election which candidate your clan will vote for, and everyone in your family promises to vote according to that decision, the process by which your family comes to that decision would not be an “election” for purposes of federal law. Even if the person counting the ballots brazenly lied about the results and thereby changed the votes of the five or ten members of your clan, that fraud would not be regulated by the federal government. Even today, there is such a thing as purely private behavior, which, if it is to be policed at all, is policed by private actors only.
But in United States v. Classic, the Supreme Court concluded that a “primary” was not a merely private activity. It was instead an “election” for purposes of the Constitution. That meant that Congress could set the rules for primaries (if it so chose); it meant it could regulate fraud and other bad behavior occurring in a primary, and, most importantly, it meant that the “great purposes” of our constitutional regime — with a Congress that would be, as Madison said in Federalist 52, “dependent on the people alone” — had to apply to that primary just as it did to the general election. Arbitrary or illegitimate exclusions were thus forbidden, even if sensible and germane exclusions were not. So banning someone, directly or indirectly, because of her race was not allowed. But excluding Democrats from a Republican primary would be perfectly permissible.
The consequence of this decision, of course, was to weaken the right of association. But that right — like every right within our constitutional scheme — is not absolute. It instead must compete with other more fundamental rights, including the truly fundamental right to an effective representative form of government.
So here’s what we have so far: Because the primary was an essential step in selecting representatives to Congress, the “great purposes” of the Constitution had to apply to it as well as to the general election. And once the Court made that move, it was a small step to recognizing that there was something wrong with a rule that excluded blacks from participating in the Democratic primary. The white primary was over, and the long struggle to secure to black citizens the rights of citizenship was one step closer to being won.
Greening the White Primary
There is no white primary in America today. There are important fights about ballot access, but no political party of substance openly and affirmatively tries to exclude people from its membership on the basis of race.
Instead, the most important exclusionary primary in America today is the Green Primary — not the primary that selects the candidates for the Green Party, but the primary that determines how much money any candidate has to run her campaign. The Green Primary is the process by which candidates appeal for the support of the “relevant funders” of campaigns, in order to raise the money they need to run in the general (and primary) elections.
To be sure, there are no ballots in the Green Primary. You “vote” for a candidate by sending a check, not by checking a box. And unlike an ordinary primary (or general) election, the relevant decisions in the Green Primary are not made on an “Election Day.” They are instead made 24/7, between one election and the next, as candidates struggle to win the support they need to be competitive in the voting elections.
But the candidates entered into the Green Primary are engaged in precisely the kind of activity that engages candidates in any primary: They must woo the support of the relevant deciders, to give them the chance to move to the next stage of the election.
Those “relevant deciders,” however, are not all of us. Like the White Primary, the Green Primary is exclusive: Only some get to vote, while others are effectively excluded. But here, the exclusion is not on the basis of race. The exclusion is based on the size of one’s wallet. In a world of effectively unlimited contributions, whether directly or indirectly, the relevant target of Green Primary campaigning is that tiny fraction of the 1 percent capable of contributing enough to make it worthwhile for candidates to even think about their wants, so candidates can present themselves in a way that makes them seem compelling.
In a single line, the problem is this:
We have outsourced a critical stage in the election process — the funding of political campaigns — to the tiniest fraction of the 1 percent.
That outsourcing, in turn, has radically weakened our representative democracy, by making our representatives dependent on a group that in no way represents us.
Don’t misunderstand me: I have explained the Green Primary by comparing it to the White Primary. But I am not arguing that the Green Primary, like the White Primary, is necessarily unconstitutional. Maybe it is, maybe it isn’t (and under current Supreme Court doctrine, I’d say it isn’t). My point instead is to isolate just what it is about the current way that we elect our representatives that makes that process so troubling to the “great purposes” of the Constitution. And if it is troubling, we have reason enough to remedy it, whether or not it is also unconstitutional.
To most, the trouble in this outsourcing of the funding of campaigns to the tiniest fraction of the 1 percent is clear. That’s why more than 90 percent of Americans believe it “important” to “reduce the influence of money in politics.”
But for the few for whom it isn’t clear, let’s imagine a few alternatives that should highlight the relevant point. Imagine the Chinese offered to fund America’s elections. Not at an equal amount for every candidate, but at a reasonable amount, given the persuasiveness of the candidates to the Chinese committee handing out the contributions. Or imagine the AFL-CIO made the same offer. Or Goldman Sachs. The point in each case should be clear: Even though, as the Supreme Court said in Citizens United, “the people have the ultimate influence over elected officials,” the fact that a very special interest played a dominant role in the penultimate stages of an election matters. No one can honestly believe that the makeup of the funders of political campaigns is irrelevant — at least in a world where candidates spend 30 to 70 percent of their time raising money from these funders — simply because the voters have “ultimate influence.” The voters in the Soviet Union also had the “ultimate influence.” But few considered that system a democracy.
This outsourcing cripples representative democracy. In the persuasion necessary to win votes, candidates must appeal to a broad range of the Americans who could cast votes for them. In the persuasion necessary to win campaign funds, candidates appeal to the range of Americans who can most efficiently provide campaigns those funds. Those two appeals are different. To the extent the idea of representativeness is to be tied to voters, that difference in the appeal weakens the primary appeal to those voters.
We can make this point more sharply if we return to the ideals of our Framers. For against the background of those ideals, it’s fairly obvious why our current system is a corruption of those ideals.
The Framers didn’t give us a “democracy.” They gave us “a Republic.” By “a Republic,” they meant a “representative democracy.”
That representative democracy, however, was divided. Even if “the People” were to be the ultimate authority, in the sense that we are the sovereign, the different institutions that the Constitution created were meant to be differently tied to the People.
The judiciary was the least connected. Federal judges were not elected. They were to be dependent on the law, not on politics or elections.
The Senate was also meant to be relatively unconnected. Its members were selected by state legislatures, though those state legislatures were in turn selected by the People.
The President was to be a bit more connected. The People expressed their will through an electoral college, which had the power to ratify the results of any popular election — or to reject them.
But the House of Representatives was intended by the Framers to be tied to the people directly. Frequent elections, Madison said, would produce “dependence and sympathy” of the House on the People. And the relatively small districts tied to those frequent elections would produce a Congress, as Madison promised in Federalist 52, that would be “dependent on the People alone.” Here at least, in the House, the People would rule.
But who were these “People”?
For the Framers, of course, “the People” didn’t include women (or at least not directly: Women were to be “virtually represented” — by men). It took almost a century and a half until that omission was corrected.
Likewise, “the People” didn’t include African-Americans. It took a Civil War, and then a century of political and legal struggle, until that was corrected (at least effectively) too.
But by “the People,” the Framers plainly meant rich and poor alike. As Madison explained it in Federalist 57, by “the People” he meant “not the rich more than the poor.” All the people (at least if they were deemed to be within the political class), and all the people alone.
Against this background, the “corruption” of our current government should be clear. Our Congress is dependent not just upon “the People.” It is dependent upon “the Funders” too. Our Congress is therefore not dependent upon “the People alone.”
Whether or not members of Congress ever engage in any quid pro quo bribery, at an institutional level, our Congress is corrupt.
We have allowed an influence to be inserted into the legislative process that steers the legislative process away from its intended dependence: on the People alone.
For years, there has been a debate about whether this steering really matters. Remember John Samples’s exchange with Evan Bayh: Samples was referring to a body of work in political science that found it difficult to link contributions by ordinary PACs (action committees that contribute directly to a candidate’s campaign) to roll call votes. That work has been criticized as being too narrow — one wouldn’t really expect “influence” to be applied at the most public points of the process, at least if there are other points at which force can have its effect — but the work has had a powerful life despite these obvious questions. It’s almost as if we believe it because we want it to be true (just as whites in the Old South believed blacks were “happy” with the system of segregation that defined that world).
But a recent study from Princeton makes it pretty hard to stand sanguine about the way our democracy “works.” In the largest empirical analysis of policy decisions to date by government, Martin Gilens and Benjamin Page conclude that “economic elites and organized groups representing business interests have substantial independent impacts on U.S. governmental policy, while average citizens and mass-based interest groups have little or no independent influence.”
We have a Congress that is dependent on “the People” and dependent on “its Funders.” It is therefore not surprising that its funders benefit from that dependence. It is, however, depressing that we, the People, don’t.
That we don’t should be a wake-up call to all of America — Republicans, Democrats, and Independents alike. Our government, a democracy, or more precisely, a representative democracy, is not representing us.
We need to find a way to fix that.
What Reform Would Look Like
If the problem with our democracy — our “representative democracy” — is that a competing dependence has been allowed to emerge within it — a dependence on “the Funders” as distinct from “the People,” a dependence that makes it not “representative” — the solution to that problem is pretty straightforward: Find a way to remove the competing dependence. Remove “the Funders” from the equation, and only “the People” would be left. With that competing dependence gone, “corruption” of the institution, at least, would be gone too.
There are at least two ways to remove “the Funders” from the equation. The first, advanced by some and, most prominently, by former Representative Dennis Kucinich, would remove all private money from public elections. Campaigns would then be funded publicly, and only publicly. Private funds would be verboten.
The second strategy, advanced by many more on both the right and left, wouldn’t remove private money from public elections. It would democratize it. Using either vouchers or matching funds, this alternative would give candidates a way to fund their campaigns through small contributions only.
There are many proposals that would achieve this result immediately — without any need to amend the Constitution. John Sarbanes’s (D-MD) Government By the People Act would establish an aggressive small-dollar matching system, at the extreme, giving contributions of $100 a $900 match. George Bush’s former Ethics Czar, Richard Painter, has proposed the Taxation Only With Representation Act, which gives a $200 voucher to every voter, to be used to fund candidates who agree to limit his or her campaign to small-dollar contributions only. And the group Represent.US has proposed the American Anti-Corruption Act, which has a $100 voucher plus aggressive regulation of lobbyists, to break the revolving door between K Street and Capitol Hill.
Each of these reforms would radically change the influence of “the Funders” upon our democracy, by making “the People” “the Funders.” This, in turn, would push us more firmly in the direction that Madison promised — by producing a Congress “dependent on the People alone.”
Is there a reason, then, to prefer one kind of reform over the other? If we could choose between them, is there a reason to prefer small-dollar-funded elections over purely publicly-funded?
In my view, there is. If Obama taught us anything, he taught us the value in giving. The “participation interest” in politics, as Spencer Overton has described it, produces a more committed and more engaged public. If every voter had a $100 voucher that she could give to any qualifying candidate, those candidates would work hard — from one election to the next — to give those voters a reason to invest their vouchers with them. Rather than twice every election cycle, the candidate would be constantly attentive to at least those voters plausibly willing to support him. Small-dollar democracy could thus give us a reason to be happy about representatives being responsive to their funders — since we are they!
Small-dollar reforms are different, however, from the reforms often referred to in the slogans that complain about the influence of money in politics.
For small-dollar reforms wouldn’t “get money out” of politics. Campaigns cost money. If we “got money out,” only the incumbents and the famous could ever win.
Instead, small-dollar reforms simply move the influence of big money, or big donors, out of the system.
They become just one of many. Money would still have an influence, but the influence would come from the many, not the few.
Nor do these changes have anything to do with whether “corporations are people” or whether “money is speech.” Many right-minded reformers have pushed for constitutional amendments to reverse those principles announced by the Supreme Court. Nothing I’m arguing here would necessarily say anything against those reforms, nor against the incredible organizations, like Public Citizen, MoveToAmend, and FreeSpeechForPeople, which have pushed for these kinds of reforms.
But these constitutional changes would not directly remedy the corruption that I’ve identified (since they wouldn’t, on their own, change the way elections were funded). They are not even necessary to our achieving real and substantial reform — now. Long before we get an amendment to the Constitution “to reverse Citizens United,” we could pass the legislation that would fundamentally change the way campaigns are funded. And that legislation would be perfectly constitutional, even in the eyes of this Supreme Court.
So these constitutional changes may well make sense. They may well be necessary, at least ultimately. But right now, we can make enormous progress in a much easier way — through statutes that would change the way campaigns are funded.
Finally, none of these changes would even abolish the possibility of an independent political action committee. If 10,000 supporters of Planned Parenthood, or 10,000 supporters of the N.R.A., want to get together to push their message, there’s nothing, in my view, that’s wrong with them doing that. So long as contributions are capped, independent political action committees can increase the number of “relevant funders” of campaigns. So long as contributions are capped, they would be encouraging more, not less, democracy.
But a cap is essential. Without it, SuperPACs become the vehicle through which the few exercise an influence greater than the many, by creating the system of dependence on these few funders. That’s the “democracy” we have now — a democracy that corrupts the ideals of representation announced by the Framers.
Small-dollar democracy would achieve a first step towards removing the corrupting influence of alien dependence that we have allowed to evolve within our political system.
Or more precisely, if these reforms were in effect, when candidates were dependent on their funders, they would be dependent on us.
Over the past two decades, there have been many who have seen a perfect storm for America’s democracy brewing. As the political parties have become more competitive, the leaders of both parties have directed our representatives to make fundraising their first priority. And as the court has effectively removed the limits to campaign funding, candidates for Congress have turned more and more to an ever shrinking number of the super-rich.
SuperPACS are just the latest in this trend. But they are certainly the most toxic. For as they learn to effectively coordinate campaigns without technically coordinating, they become the critical complement to any effective political campaign. Candidates learn to dance to assure the right kind of funding gets directed to the right kind of SuperPACs. That dance is for the princes, not for the people.
The election of 2016 will only accelerate this trend. Already, both parties have begun to deploy SuperPACs on their own sides. If nothing is done to change this system, we can expect it will survive for a long time. If we cannot build a movement to resist the SuperPAC model of funding elections, then both parties will settle into the new reality of American politics. Both parties will continue to work to make themselves attractive to the super rich on their own side. They will tell themselves this compromise is necessary. “How else can we get [insert your favorite reform: health care reform/tax reform/climate change legislation/control on spending] if we’re not in power?” So the pursuit of power will push both parties to come to terms with this corruption.
This reality has pushed some of us to begin thinking about just how we could create the pressure for politicians to face up to this crisis. What could we do to elevate an issue that Americans care about, but that politicians are too embarrassed to even discuss? What could we do to create a movement that might win enough seats in 2016 to make fundamental reform possible?
The answer is both ironic and obvious: a SuperPAC to end all SuperPACS.
Or more precisely, to change the way we fund elections, both directly and through SuperPACs, we needed a SuperPAC. We need, in other words, a powerful political engine to build the support that this movement will require. And we need one quickly.
So about a year ago, with a grant from two very different funders (one a libertarian, the other a liberal democrat), we commissioned a study about how much it would cost to win a Congress in 2016 committed to fundamental reform. The answer we got was a very big number — but the most important recommendation we got was that we must fight this battle in two election cycles, 2014 and 2016. And that in 2014, we target a small number of races where we could first learn what it would take to win, and second, by winning, convince others to take this campaign seriously.
The cost for that 2014 campaign was relatively small — just $12 million. In April, I announced a plan to raise that money on Kickstarter. We would kickstart half of it in two stages — first by raising $1 million in thirty days, and if we met that goal, kickstart $5 million in thirty days. Each of those targets I said I’d find a match for, so that by the end of June, we’d have the $12 million for the 2014 campaigns.
We launched the first campaign on May 1 — aka, “May Day,” which evokes the distress call, “MAYDAY,” and provides the name of our SuperPAC: MaydayPAC. In thirteen days, we had raised our $1 million, with 13,000 contributors giving an average of $87 per contribution.
In June, we will launch the second round. And if we’re successful in that, and in the matches, we will recruit the best campaign shops we can to win in at least five races in 2014. We’ll build the momentum we need for a much bigger SuperPAC in 2016.
There’s an obvious irony in using big money to beat big money. I get that. But this is the nation of Colbert. We can embrace the irony, if it gets us our democracy back.
Others are not sure. Some worry that there’s something improper about using a corrupted system to achieve corruption reform. Don’t we dirty our hands if we use the money of the few to achieve a democracy for the many?
I understand that concern. I don’t agree with it. One might have said it was wrong to use the racist system of American democracy to bring about the rights of citizenship for African-Americans. I wouldn’t have said that. Or one might have said it was wrong to use a sexist political system to bring about a democracy in which women have the right to vote. I wouldn’t have said that either. In my view, we work with the democracy we have to make a more perfect democracy. And the only way we’ll convince America that winning is possible is if we show America we’ve got the resources to win.
Finally, some worry that any system that depends upon the rich at all — which our MaydayPAC certainly will — will become compromised by those rich. Why isn’t their influence here just as corrupting as their influence is on our democracy?
Yet there’s an important distinction that we should keep clear.
The rich who support the MaydayPAC are spending their money to reduce their influence.
If we’re successful, they will be less powerful. And while I’m the first to look for an ulterior motive in what anyone close to government does, I am inspired that those with the power step up to lead us to a democracy where they have less.
“Why would they do it?” you might be tempted to ask. What’s in it for them?
It is striking, and a bit depressing, that this is such an obvious yet difficult question. Because of course, our society is filled with people who make personal sacrifices to make the rest of us better off. Think of the fireman who chooses to enter the burning building. Or the police officer who intervenes to stop a shooting. Or the teacher who could have been a lawyer. Or the doctor who chooses to work in a neighborhood with special needs.
Or think especially of the soldier. In every war in the history of the United States, there have been soldiers who have volunteered to serve. That choice is a sacrifice, because in choosing to serve, these soldiers risk an ultimate sacrifice — their “last full measure of devotion.” But they do so because they believe they are serving their country. They risk their lives “to make America safe for democracy.”
Sometimes it is difficult to see the link between the risk and the democratic reward. Think of the war in Vietnam or Iraq: No doubt, soldiers serving in those wars risked making the ultimate sacrifice. But how their sacrifice would strengthen our democracy is not clear, at least to many.
The sacrifice of the rich who support the MaydayPAC is tiny as compared to soldiers serving in an active war. For the sacrifice is only money, and in every case, there will be plenty left.
But the link between that sacrifice and our democracy is at least clearer. Our Republic has been crippled by a system in which the very few have enormous influence over elected officials. We can only restore that Republic if we can change the system that gives the rich that enormous influence. A billionaire who spends his or her money to reduce her own influence is giving us, the People, something enormously valuable: our democracy back. It’s not that we need to be grateful for that gift. But I do believe we should respect it. We need them to make this reform possible. They need us to understand its effect, even if we can never be certain of its motive: They will have less, so we can have more.