This is a story of how our elections have changed from those of a democracy admired the world over to a twisted representation of moneyed interests, in a matter of decades. Because of recent events, my story will focus on the impact this development has had on the U.S. Senate, but its influences have been felt at every level of American elected office, from the presidency to local officials. And this story will give the reader a way to do something about it.
The Federal Election Campaign Act (FECA), passed in 1971 and amended in 1974, imposed overall limits on campaign expenditures and political contributions. It provided that any contributions that are made to a candidate on behalf of another person were considered direct contributions from that other person, so you couldn’t ask your uncle to contribute in order to bypass the contribution limits. It also included campaign expenditure limits that were based on the voting-age populations of each state.
According to data from the Campaign Finance Institute, expenditures by the major parties on Senate campaigns increased from $249 million in 1978 to $886 million in 2018, in 2018 dollars. That is a substantial growth rate, but minor when compared to the growth in spending by independent groups, that is, groups not officially connected to any political party. That grew from $644,232 in 1978 to a staggering $549 million in 2018. The organizations themselves did not donate, rather the money was funneled through the organizations' PACs, their individual members or employees or owners, and those individuals' immediate families. Many of the original donors’ identities remain unknown.
This phenomenon of vastly increased spending from outside groups has been repeated at all levels of the U.S. government, but it has been felt most acutely in Congress, which this year passed a $3 trillion pandemic relief package that included enormous bailouts to the country’s largest corporations, many of which have been indirect donors to Senate campaigns. For example, Mark Warner received $40,100 from Morgan Stanley this year. Goldman Sachs contributed $46,100 to Ted Cruz in 2018, $95,000 to Marco Rubio in 2016, and $164,500 to Rob Portman in 2016. Morgan Stanley and Goldman Sachs each received $10 billion bailouts.
What happened to the controls provided by the FECA?
That law was successfully challenged in 1975 in Buckley v. Valeo. The Court found that governmental restriction of independent expenditures in campaigns, the limitation on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures, violated the First Amendment. The Bipartisan Campaign Reform Act of 2002 (BCRA), also known as the McCain-Feingold Act, was a later attempt by Congress to address the need for substantive campaign finance reform after excessive spending during the 1996 election:
Specifically, the BCRA distinguishes a new form of campaign advertising called electioneering communications, defined as an ad that: (1) airs 60 days before a general election or 30 days before a primary, runoff, or caucus; (2) refers to a specific federal candidate; and (3) is targeted to the relevant electorate. An electioneering communication is an ad with the sole purpose of attacking, opposing, supporting or promoting a federal candidate with the exceptions of news stories and editorials.
Electioneering communications must disclose independent expenditures. Individuals and groups making independent expenditures must disclose who is receiving the money and the amount of money. However, corporations and labor unions are banned from using funds from their general treasuries for electioneering communications. Amounts spent on political advertising that are not directed by, or associated with, a candidate or political campaign are known as independent expenditures and are not subjected to the spending limits set forth in the Act.
The most well-known and arguably most important part of the BRCA is its ban on soft money (contributions that are not regulated by federal election laws). The BCRA prohibits national, local and state party committees from receiving or spending soft money.
The day the BCRA came into effect it was challenged in court by Senator Mitch McConnell, the NRA, and others. They lost, and the law went into effect. But that was not the end of the story, of course.
On January 21, 2010, the Supreme Court Issued a ruling in Citizens United v. Federal Election Commission that overruled decisions under Austin v. Michigan State Chamber of Commerce (Austin) and part of the above case of McConnell v. Federal Election Commission. Ever since the 1886 case of Santa Clara County v. Southern Pacific Railroad, the Court has tacitly granted corporations the same rights as individuals under the 14th Amendment.
But Citizens United, in addition to granting corporations and unions the same rights of free speech as individuals under the First Amendment, permitted them to use their general treasury funds for election-related independent expenditures, which invalidated the BRCA prohibition on using general treasury funds for electioneering communications. This means that your electric company can use your payments to assure the election of utility-friendly state legislators who will work to allow your rates to be raised in future.
In the aftermath of Citizens United, the FEC created SuperPACs:
[I]ndependent expenditure-only political committees that may receive unlimited contributions from individuals, corporations, labor unions and other political action committees for the purpose of financing independent expenditures and other independent political activity.
The independence of SuperPACs has turned out to be largely fictitious, but they are certainly unlimited in amounts of contributions they can make. SuperPACs may receive funds from 501(c)(4) “non-profit, social-welfare” organizations such as the NRA that are not required to disclose the identities of their donors. With recent regulatory changes by the Trump administration, even foreign individuals, businesses, and governments can indirectly and secretly “invest” money to influence U.S. elections in unlimited amounts. These 501(c)(4)s are no longer obligated to reveal the identities of donors who give them more than $5,000.
The actions of SuperPACS that make independent expenditures to influence elections have deepened the corruption of our political system. We have seen the results in the coronavirus bailouts. Although the public often does not know who is backing a candidate for office, it is very likely that the candidate does know and is just as likely to return the favor. The FEC has even ruled that candidates’ images can appear in ads funded by SuperPACs.
The only way out of this is with an Amendment to the Constitution that requires elected representatives at all levels to regulate campaign donations and expenditures, and to once and for all proclaim that the rights in the Constitution are meant for human beings only. The House of Representatives already has such a bill, HJR 48, but the Senate does not. Senator Ed Markey of Massachusetts is willing to sponsor it, but only if he has 4 cosponsors.
Send a letter to your senators and, if she or he is running for reelection, to their challenger(s) as well, telling them to support this Amendment. This link includes a draft letter, and it takes only 2 minutes to send it. There is no request for donations.
Please take a stand to regulate money in our elections, deny Constitutional rights to corporations, and prevent the corrupt distribution of our tax dollar bailouts.