Campaign finance law is as much a product of the U.S. Supreme Court as of Congress. For more than four decades, the Court has actively superintended campaign finance regulation through its interpretation of the First Amendment. The ultimate consequence of the Court’s free speech decisions is to enhance the voice of the wealthy while stifling the voice of working people. This imbalance is likely to get worse after last year’s decision in Janus v. AFSCME, which can be expected to further erode the political influence of labor unions. This post explores campaign spending in this year’s congressional elections in the context of the Court’s First Amendment decisions, which helped create an unequal and dysfunctional system that will continue to diminish our democracy for years to come.
A few years ago, Renata Strause and I wrote a report called The New Soft Money. We used this term to describe the nominally “independent” spending in federal election campaigns through super PACs and other outside groups, which increased dramatically after Citizens United v. FEC. Yet for all the justifiable criticism that Citizens United has received, the problem runs much deeper than that.
Back in 1976, the Supreme Court declared in Buckley v. Valeo that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” The Court thus took equality off the table as a value that can justify restrictions on campaign spending. In the decades that followed, the Court’s tolerance for campaign finance limits waxed and waned. The Court took a more deferential posture toward regulation in cases like Austin v. Michigan Chamber of Commerce (1990) and McConnell v. FEC (2003).
That era of relative deference ended with the Roberts Court, which has struck down a long list of campaign finance limits. That includes the federal ban on for-profit corporations funding electioneering communications from their treasuries, which McConnell had upheld. Citizens United overruled that aspect of McConnell, opening the door to unlimited spending by corporations, as well as wealthy individuals and other groups.
As Strause and I described in The New Soft Money, these decisions set the stage for a massive increase in the amount of campaign money flowing through Super PACs and other outside groups, not formally connected with candidates and parties. The result is a system that no one would design if starting from scratch. Current law limits contributions to candidates and parties, but – thanks to the Court’s First Amendment decisions – can impose no limit on outside groups that engage in “independent expenditures.” The result is exactly what you would expect: a sharp increase in the amount of money flowing through outside groups. Outside spending outpaced political party spending in 2012, and has continued to rise in the years since.
One of the most surprising things that Strause and I found when researching The New Soft Money is how widely shared dissatisfaction with the current system is across the ideological spectrum. Political players on the left and the right largely agreed that the way money flows into election campaigns makes no sense. Especially problematic is the rise in outside spending compared to spending by political parties. While political parties are accountable to the electorate, super PACs and other outside groups are much less so – they don’t appear on the ballot. Republicans tended to blame Congress (especially the Bipartisan Campaign Reform Act), while Democrats tended to blame the Court (especially Citizens United). But almost everyone agreed that the increased flow of money through outside groups rather than political parties was a significant problem.
Even more worrisome than outside spending’s effect on elections is the impact that it has after the election is over. Outside spending affects governance as well as elections. It is not simply the possibility that the ever-present need for campaign money may influence the bills politicians vote for or policy positions they take. It is also that the threat of outside spending against incumbent legislators may alter their behavior. Occasionally, the threat is explicit. One former Senator described a threat to “spend against me significantly and try to defeat me if I voted a certain way.” This type of concern recently garnered public attention, when a group called Crowdpac raised money in opposition to Senator Susan Collins, to be spent if she voted in favor of now-Justice Kavanaugh. A greater concern than this type of (apparent) grassroots effort is the prospect that a deep-pocketed individual, corporation, or other group will use its wealth to influence legislative decisionmaking.
Outside spending may also exacerbate political polarization, already at record levels. That’s because many of the groups spending profligately to influence Congress are pushing strongly agendas that tilt toward the extremes. As one former legislator told us, “No one’s saying ‘Here’s $50 million for a good compromise.’” These concerns are not merely anecdotal. Ray La Raja and Brian Schaffner have found that, by allowing wealthy ideological groups to dominate campaign finance, the current system fosters political polarization.
An examination of spending in the current cycle suggest that things are getting worse. Data collected by the Center for Responsive Politics show that outside spending is up considerably in the 2018 cycle, compared to the last midterm elections in 2014. As of November 4th, there had been over $1 billion in independent expenditures – and this includes only those which are reported. Where’s all of this money coming from? Some of the biggest donors are so-called “Shadow Parties,” closely linked to either the Democratic or Republican Party but nominally separate so as to avoid contribution limits – as well as the public accountability that comes with the party label. There’s also the phenomenon of “Pop-up PACs,” which magically appear to spend millions in the final days of the campaign, so voters can’t know the source of their money.
As the Brennan Center points out, we don’t know the source of much of the money flowing through Shadow Parties. But the available information suggests that most of it comes from super-wealthy donors in increments of $100,000 or more. Others high on the list of big outside spenders include ideological groups like Club for Growth, the National Rifle Association, and Planned Parenthood, as well as business groups like the National Association of Realtors and U.S. Chamber of Commerce that are committed to advancing their members’ economic interests.
To be clear, there’s nothing illegal about groups spending money to serve their economic or ideological interests. The big concern is that, after the election, members of Congress will be more responsive to the biggest spenders rather than to ordinary citizens. That would not only tend to exacerbate partisan polarization, but also to tilt the political playing field even further toward wealthy corporations and individuals.
With one hand, then, the Roberts Court opened the floodgates to spending by corporations and wealthy individuals through Citizens United and other decisions. With the other, it has put its hand over the mouths of working people through another line of First Amendment cases. In Janus v. AFSCME, the Court overturned over four decades of precedent that allowed public-sector unions to collect mandatory fees from workers who benefit from its collective bargaining activities. By allowing public-sector workers to opt out of agency fees, the Court has created a huge free-rider problem. As Justice Kagan explained in dissent: “Employees [will] realize they can get the same benefits even if they let their [union] memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers) – so they too quit the union.”
The systemic political inequality likely to flow from Janus is apparent when the decision is juxtaposed to the Roberts Court’s campaign finance precedents. As Greg Magarian puts it in his book Managed Speech, “these decisions help corporations, the beneficiaries of Citizens United, in their political struggle against unions’ advocacy of positions favorable to workers.” As the Court amplifies the voice of one side of the political debate, it stifles the voice of the other. Labor unions had already seen a significant decline in their political influence in recent decades. And even before Janus, they were prohibited from forcing public-sector employees to support union political activities. Thanks to Janus, union influence can be expected to decline further in years to come. There is strong evidence that this was one of the primary goals of the multi-year effort that led to Janus. As conservative activist Grover Norquist gleefully put it the year before: “Seven million public-sector employees who pay between 4 and 8 billion dollars a year in dues—a third of them will quit.. . . Now try funding the modern Democratic Party without union dues—good luck.”
Some have candidly celebrated Janus for curbing union political power. And there’s certainly an argument that the decision will lessen polarization by disarming certain left-leaning ideological groups. The problem is that it’s a unilateral disarmament that the Supreme Court has imposed. The long-term consequence of the Court’s handiwork will be an even greater imbalance of political influence. The new soft money can thus be expected to tilt our political system even further in favor of wealthy and powerful individuals and corporations – and against the interests of working people – for many years to come.