American Democracy for Sale

            I’ve changed my mind.

            Giving money to a political candidate or to an advocacy group is a form of speech protected by the 1st and 14th Amendments.  I’m sorry, but it is.  It’s no less protected than the freedom to associate with other people, to produce and distribute petitions or to organize marches and demonstrations.  Surely, if there is a right to do these things, there is a right to pay for their costs. And that’s part of what the Supreme Court held in its landmark 2010 Citizens United v. Federal ElectionCommission decision.

            And if you think about it, we really wouldn’t want it any other way.  That right enables scores of groups like the ACLU, NAACP, NARAL, all of them corporations, to do the important but sometimes unpopular advocacy work James Madison’s pluralist American democracy requires.

            Political campaigns are also about Madisonian advocacy, but we have customarily felt differently about how we fund them.  The potential for campaign cash to result in the purchase and sale of politicians and the offices they win is too great.
 

            That’s why we have strictly limited the amount of money we allow people and corporations to give directly to politicians. We permit our interest in preserving American democracy to trump (no pun intended) the rights of the individuals to give unlimited amounts of money to political candidates.

            In other words, the insights of the Tragic Commons apply: even with respect to Constitutional rights, sometimes the good of the many outweighs the good of the one.

            I had believed that in Citizens United the Supreme Court had come up with the right balance.  Controls on the amounts of money that could be given to individual candidates could remain in place.  But people were free to contribute as much as they wanted to independent third party entities supporting particular candidates as long as there was no coordination between candidates and the third party entities AND as long as those entities disclosed the identities of their donors.

            I was wrong.

            In my naiveté, I thought this would work.  As long as these really were third party entities that candidates couldn’t control, it seemed to me that by requiring these entities to disclose their donors, everyone would be able to see who was angling for influence in any election.  Yeoman voters would consider the people backing a candidate and decide whether a candidate was in someone’s pocket.

            Enter the campaign finance lawyers.

            They helped candidates create entities called “super PACs” managed by close confidants of the candidates.  They helped these super PACs institute protocols that, at least on paper, kept the management of the super PAC separated from the management of the candidates’ official campaign organizations. And they found ways to funnel money to these organizations that could leave the ultimate donors in the shadows.

            And then the fun began.

            In June 2011, one year after the Citizens United decision and one year before the next presidential election, super PACs had raised $26 million.  Total super PAC fundraising amounted to a little more than 4% of all political funds raised.

            By June of 2015, again only a year away from the next presidential election, super PACs had raised a whopping $314 million, amounting to almost a third of all funds raised in this cycle.

            Here’s a chart I found in the Washington Post that nicely breaks down political fundraising for this presidential cycle by party, candidate and fund recipient:

 

            Notice that for the most part, the Republican candidates who have raised the least super PAC money are also the Republican candidates who were relegated to the “kids table” and not invited to participate in last night's prime time debate on Fox. Also notice that in almost all cases on the Republican side, super PAC fundraising accounts for most of the money collected on behalf of the candidates.

            The notable exceptions are Rick Perry, who has probably been unable to shake the impression that he is a boob, Bobby Jindal who, let’s face it, doesn’t fit the Republican demographic profile, and billionaire Donald Trump who has said he doesn’t need any campaign contributions to win.

            This wouldn’t be so bad if super Pac fundraising reflected the enthusiasm of rank and file voters.  But it doesn’t.  According to an analysis by the New York Times almost half of all campaign money raised so far comes from fewer than 400 super wealthy families. About 130 families have provided half of all of the money raised by the Republican candidates and their super PACs.

            Almost all of the Republican candidates are particularly beholden to fewer than 10 contributors who have written big checks to their super PACs.  The super PAC supporting Sen. Marco Rubio (R-FL), for example, got almost 80% of the $16 million it has from just four contributors; likewise, just three contributors have provided about 71% of all the money raised on behalf of Sen. Ted Cruz (R-TX).  

            The story is more or less the same for all of the other Republican candidates who are accepting super PAC contributions except for Jeb Bush, who has built a wider contributor base.  Even so, Bush got 63% of the money he has raised so far from donors who have written checks for $100,000 or more.  Bush had 24 contributors who wrote checks for $1 million or more.

            Despite the Supreme Court’s requirements, these super PACs are anything but independent.  Jeb Bush chaired the super PAC, Right To Rise, now supporting him and raised in excess of $100 million, only turning control of it to others just before he formally announced his candidacy.

            Just like the super PACs that support the other presidential candidates, Right To Rise is now operated by trusted political operatives who have long been part of Bush’s inner political circle. 

            The lawyers have seen to it that there aren’t any formal links between the super PAC’s and the candidates they support.  But it strains credulity to think that there aren’t informal communications going on and that the patron super PACS are insensitive the candidates' general campaign strategy.

            That’s because super PACs are doing almost all of the heavy lifting usually done by the official campaign committees.  They’re doing polling.  They’re producing commercials for television, internet, and radio.  They’re creating direct mail. They’re recruiting volunteers.  And, they’re paying for candidate transportation, hotel accommodations and food.  But because they are theoretically independent of the official campaign, candidates can easily deny responsibility for anything the super Pac does.

            Is this any way to run a democracy?  True, citizens will vote.  But if only the candidates with sufficient financial resources are able to get in front of the voters through forums like last night's debate, the power to decide who will finally be on the ballot will rest with fewer than 400 families whose interests and priorities do not necessary track with the interests and priorities of most Americans. It’s hard to imagine that these wealthy families are donating all this money out of the goodness of their hearts and their for the rest of us.

            There are no absolute rights in the Constitution.  No one has the right, for example, to disclose information that exposes our country to a severe national security risk. As justice Arthur Goldberg once wrote, “while the Constitution protects against invasions of individual rights, it is not a suicide pact.”  Individual rights must bend when the welfare of the nation is at stake.

            When we let billionaires, exercising their rights to free speech, control our political process as they now do, our 226 year experiment in constitutional democracy will end in failure.  Our government of the people, by the people and for the people will cease to exist.