Solutions to the Influence of Big Money in Politics

Heeding President Obama's Call

Originally posted at The Huffington Post.

President Obama’s valedictory State of the Union last week brimmed with optimism. Refraining from a traditional laundry list of policy proposals, he stayed rooted in big themes about America, our future and the challenges ahead. He spoke eloquently about how our democracy is built upon “voices of unarmed truth and unconditional love.”

But “the most important thing [he] want[ed] to say” was that “the future we want … will only happen if we fix our politics.” Among other things, we “have to reduce the influence of money in our politics” that allows “hidden interests [to] bankroll our elections. … If our existing approach to campaign finance can’t pass muster in the courts, we need to work together to find a real solution.”

I watched the speech with three close friends. One of them asked a question I’m sure was repeated in living rooms across the country: “Okay, sounds good; but what are the action steps?”

We’ve heard President Obama talk plenty about the problem of money in politics. In his 2010 State of the Union, the President famously called out the Supreme Court one week after its 5-4 decision in Citizens United. And in last year’s address, he mentioned the need to “spend less time drowning in dark money for ads that pull us into the gutter.”

Americans, too, are well acquainted with the problem of money in politics. They know that the power of big money is a barrier to the kind of democracy that works for everyone. It makes it harder for Americans who lack personal resources or wealthy connections to mount competitive campaigns. As the President put it in August, “the influence of Super PACs and the ability of a handful of billionaires to dictate who can compete or not compete … that’s a problem.” A New York Times/CBS News poll last summer found that 84% of Americans – irrespective of party – believe that money has too much influence in political campaigns today.

What we need are solutions. The same poll found that 85% of us believe we should “fundamentally change” or “completely rebuild” the system for funding political campaigns.

There are real solutions – some that the president can implement alone, some requiring cooperation with Congress, some at the administrative level, and some implemented at the state level – that will restore balance to our campaign finance system. Moreover, they pass constitutional muster and enjoy broad support from Americans of all political stripes.

The solutions are discussed in the “Fighting Big Money, Empowering People: A 21st Century Democracy Agenda” that 13 groups, including Common Cause, are urging presidential candidates to adopt. They are built on successes at the federal, state, and municipal levels.

The agenda is guided by five principals of democracy, along with policies that will put it in practice:

Everyone participates. It’s important that everyone have a fair chance to influence their representatives based on the merits of their ideas – not the size of their bank accounts. Voter-owned, publicly financed campaigns would set new priorities on Capitol Hill and in state legislatures throughout the country. Proposals to do this would provide public funds to amplify small donations to candidates that agree to lower contribution limits. Such systems have had great success at the state level in Connecticut and at the municipal level in New York City, for example. In Maine, a robust majority of voters updated the state’s system in November.

Public financing lets legislators spend less time fundraising from deep-pocketed out-of-state donors and more time with neighbors and constituents. It also would provide a more diverse Congress that is more representative of America. Voter-owned publicly financed campaigns would go a long way toward restoring the fundamental promise of democracy, giving us representatives responsive to the needs of their constituents and not just their financial backers. Bills pending in Congress to implement this system include the Government By the People Act, the Empowering Citizens Act, the EMPOWER Act, and the Fair Elections Now Act.

Everyone’s voice is heard. In McCutcheon v. FEC, another 5-4 Supreme Court decision that ushered more money into politics, Justice Stephen Breyer wrote in his dissent that “where enough money calls the tune, the general public will not be heard.” That’s why it’s important to maintain meaningful contribution limits – so that everyday Americans aren’t drowned out by wealthy spenders. Some states like Oregon and Virginia have no contribution limits at all – politicians can accept checks in any amount from any source. That brings with it the risk that Justice Breyer warned about. The Supreme Court has long upheld contribution limits to candidates and parties.

Everyone knows who is trying to influence our views and our representatives. A fully informed electorate is key to a healthy democracy. Transparency in political spending lets us follow-the-money and gauge for ourselves who – and what – might be influencing our representatives’ decisions. The Supreme Court – by a vote of 8-1 in Citizens United – upheld disclosure laws so that the voters may “give proper weight to different speakers” and decide “whether elected officials are ‘in the pocket’ of so-called moneyed interests.” Since 2010, nearly one-third of outside money – to the tune of more than $500,000,000 – has come from secret sources. Congress could shine a light on this money by passing the DISCLOSE Act, which would require organizations spending money to influence elections to disclose their major donors to the public. Importantly, the DISCLOSE Act would fill in the gaps after Citizens United and let voters see the ultimate sources of campaign-spending – even when the money is funneled through shell organizations. States like Massachusetts and Rhode Island have passed new laws modeled on the DISCLOSE Act.

Even with a gridlocked Congress, agencies like the Federal Election Commission have independent authority to update their disclosure regulations post-Citizens United; the Securities & Exchange Commission could require public corporations to disclose political spending to shareholders; the Federal Communications Commission could require advertisers to disclose their “true identity;” and the Department of Treasury could draw brighter lines about political activity so that organizations do not abuse the system to hide campaign donors. And pursuant to his own authority, President Obama could sign an executive order – as over one million people have urged – to require federal contractors to disclose their political spending. According to Public Citizen, this would reach at least 70% of Fortune 100 companies.

Everyone plays by fair, common-sense rules. President Obama made clear in his State of the Union that solutions must “pass muster in the courts.” All of the solutions discussed so far are consistent with the Supreme Court’s guidance – namely, that campaign finance laws may only survive First Amendment scrutiny if they curb corruption and its appearance. A discussion of how the Court’s definition of corruption has narrowed under the Roberts Court is beyond the scope of this blog post. Still, there are other constitutional rationales – such as political equality – that could justify our campaign finance laws. It may take new Supreme Court justices – or even a constitutional amendment – to restore this jurisprudence and allow Congress and the states to pass stronger laws than those discussed above.

Everyone is held accountable, with enforceable penalties to deter bad behavior. Our laws are only as good as they are enforced. The Federal Election Commission is notoriously dysfunctional and increasingly failing to rein in violations of the law. Commissioner Ann Ravel, who stepped down as FEC Chair two weeks ago but remains on the Commission, told the New York Times that the “likelihood of the laws being enforced is slim. People think the FEC is dysfunctional. It’s worse than dysfunctional.” One solution would create a new agency with real power to hold violators accountable – and to write regulations consistent with the law. A bipartisan bill – the Restoring Integrity to America’s Elections Act – is now pending in Congress. It would, among other things, reduce partisanship on the Commission and give the agency the teeth it needs to uphold public confidence in the integrity of our campaign finance system.

These solutions are far from exhaustive – and are by no means exclusive. Together, we can work to put these in place and stay true to the promise of democracy.