Far from overturning its Citizens United ruling, the Supreme Court may soon hand down a decision that could further erode campaign finance restrictions.Chris Maddaloni/CQ Roll Call
Campaign finance reformers have had much to bemoan over the last few years: the explosion of outside money flooding political campaigns after the 2010 Citizens United vs. Federal Election Commission decision, the newly prominent role of political nonprofits and loosely independent political committees shaping elections while finding ways to cloak their donors, not to mention the lack of movement in Congress to address the seismic changes in the campaign finance landscape.
Their prognosis for 2014: It could get much worse.
Far from overturning Citizens United, as reformers once hoped, the Supreme Court is expected to hand down an equally consequential decision any day now that could further erode campaign finance restrictions for millionaire donors. In McCutcheon vs. Federal Election Commission, a wealthy Alabama businessman is contending that the current limit the law places on the total amount of money an individual can directly contribute to candidates, parties and traditional political action committees violates his freedom of speech. If the court rules in favor of Shaun McCutcheon and the Republican National Committee, which has joined him in the case, the aggregate limit for contributions could go from $123,000 in one election cycle to upwards of $3.6 million.
"Unfortunately, it’s not good,” said Mary Boyle, spokeswoman for the liberal good-governance organization Common Cause. "That would certainly be another blow to regular people having their voices heard in the political process, the people who can’t afford to give in these huge amounts."
Meanwhile, there is little chance that Congress will take up the issue. Many advocates agree that the best way to counteract the influence of elite spenders — short of a long-shot constitutional amendment that would allow Congress to regulate money in politics — is to construct a system of federal public financing, in which congressional candidates are rewarded for raising money from small donors by receiving matching public funds.
“There’s been a concerted effort to dismantle regulations,” said Lawrence Norden, deputy director of the Democracy Program at the Brennan Center, an advocacy organization. “And of course, when new regulations are put in, there are always efforts to find ways to get around them. That’s where public financing comes in — why it’s such an important component. It’s one kind of comprehensive answer.”
The Fair Elections Now Act, which would have constructed such a system, was introduced last year but did not make it to a vote in either the House or the Senate. A similar bill is expected to be introduced in the next few months, but supporters are less than optimistic.
“Congress is unfortunately not going to be doing too much — they’re not doing too much, period, and they’re certainly not doing too much in this field,” Norden said.
In the absence of courts friendlier to campaign finance regulations or concerted action by Congress, reformers are left with a piecemeal approach: trying to bolster laws on the state level, mounting defenses to existing rules on the state and federal levels and urging regulatory agencies to step in.
“There will be always some element of whack-a-mole. Money will always find the other step on the other side of the law,” said Nick Nyhart, president of Public Campaign, an advocacy organization for public financing. “But reasonable regulations can be put in place and make a difference.”
New York Gov. Andrew Cuomo has championed public financing in his state. Although an effort to get a comprehensive campaign finance bill failed last year in the Legislature, state lawmakers are expected to take up the issue again. Similar legislation has been introduced in Iowa and Missouri, and such systems are already in place in Connecticut, Maine and Arizona.
On the regulatory front, the Treasury Department has proposed a rule to limit the political activity of so-called social welfare organizations — groups like Crossroads GPS and the League of Conservation Voters, which register as nonprofits but spend millions attempting to influence campaigns. In addition, the Federal Communications Commission is being lobbied to strengthen disclosure rules for organizations funding political advertising. The Securities and Exchange Commission had previously considered a rule to require publicly traded corporations to disclose their political contributions to their shareholders, but that has fallen off the agenda for the year.
Nonetheless, reformers see some silver linings in an era that they agree is historically bad for campaign finance. One, said Boyle of Common Cause, is that the public is becoming more attuned to the issue, which dovetails with the national conversation happening about systemic economic inequalities.
“The public gets how they are losing out, on how voices of regular people are being drowned out by the voices of corporate money and by people like the Koch brothers who can spend millions of dollars in elections,” she said. “Now you combine that with social inequality — the fact that the top 1 percent has been getting richer and richer, while the rest of the scale falls back and can’t keep pace. There’s a direct correlation. It is that 1 percent that is spending all this money to win policy concessions to make them richer and more powerful.”