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Democrats Say Citizens United Should Die. Here’s Why That Won’t Happen

21 minute read

Catastrophe seemed imminent.

“In a certain real way, the republic is at stake,” said Sen. Chuck Schumer, D-N.Y.

“We’re really stress-testing our democracy in a way we never have before,” said attorney Lawrence M. Noble.

The menace under the microscope? “Dark money” in politics.

But the doomsday scenarios played out one by one in a subterranean Capitol Hill hearing room that was far from packed, and Republicans were notably absent from the July event.

The event is a metaphor for Democrats’ larger battle against big and secretive political cash: lots of pomp, underwhelming circumstances.

Seizing on the specter of Russian election influence, they’ve ramped up their quixotic effort — with minimal effect — to blunt Citizens United v. Federal Election Commission, the controversial 2010 Supreme Court decision that unleashed a torrent of special interest spending on U.S. elections.

In doing so, they’ve introduced two dozen bills related to money in politics. Some are aimed at increasing donor transparency, others are targeting massive contributions from special interests. A couple are intent on reforming the Federal Election Commission, the government agency charged with enforcing election laws.

None, a Center for Public Integrity analysis indicates, have had a single formal hearing, much less an up-or-down vote in either the U.S. House or Senate.

Election reform-minded Democrats are also hobbled by their party’s recent history. When they had opportunities during President Barack Obama’s first two years in office to significantly alter the American campaign finance structure through legislation, they didn’t.

And in a twist that’s infuriated acolytes of Sen. Bernie Sanders, among others, Democrats are following Republicans’ lead by raising millions of dollars in so-called “dark money” contributions, the origins of which are largely untraceable.

All the while, Republicans, who now control every branch of government, have expressed little interest in stanching the ever-increasing flow of big money into federal elections.

For his part, President Donald Trump, an early critic of big-moneyed interests, continues to pledge to “drain the swamp.” Swamp draining, however, doesn’t appear to involve political money matters, as Trump rarely addresses the issue these days. (Trump’s press office did not respond to multiple requests for comment.)

“Whether you like it or not, whether you believe in bipartisanship or not, if you don’t have a strategy to attract Republican votes, you’re just not going to win,” said Meredith McGehee, chief of policy, programs and strategy for Issue One, a nonpartisan government accountability nonprofit.

As for the package of bills the Democrats have proposed, McGehee said: “It has zero chance in hell of going anywhere.”

Citizens United: a love-hate relationship

Federal-level campaign finance reform used to be something both Republicans and Democrats got behind.

Congress passed the Federal Election Campaign Act of 1971, which mandated reporting requirements of contributions and expenditures. And in 2002, Sens. John McCain, a Republican, and Russ Feingold, a Democrat, teamed up to champion the Bipartisan Campaign Reform Act, which restricted soft money contributions to parties.

Fred Wertheimer, founder and president of reformist nonprofit Democracy 21, points out that legislation to close disclosure loopholes passed with overwhelming bipartisan support in 2000. Republican senators favored it 48-6.

A decade later, disclosure loopholes were again back before Congress following the Citizens United decision. But this time, every Republican senator voted against the bill. The DISCLOSE Act lost 59-39, one vote shy of the 60 votes needed to break a filibuster led by Republican Sen. Mitch McConnell, the minority leader at the time.

Citizens United changed the political calculus. Along with SpeechNow.org v. Federal Election Commission, it notably paved the way for the creation of so-called super PACs — turbo-charged political action committees that can raise unlimited amounts of campaign cash from wealthy donors, corporations and nonprofits.

Several reform advocates said they believe Republicans want to preserve the post-Citizens United system because they’ve benefited the most from it.

They also wonder whether Democrats would actually push through reforms were they to control Congress again — particularly because many Democrats have taken full advantage of the fundraising freedoms Citizens United has granted them.

Democratic presidential nominee Hillary Clinton, for example, railed against Citizens United. But she, too, benefited from a small army of super PACs and millions of dollars in secret political money.

This summer, Democrats are asking supporters to fight against Citizens United. Their messages, however, amount to little more than opportunities for Democrats to collect supporters’ demographic information — and raise money.

In the 2016 election cycle, special interests spent at least $183.5 million in “dark money,” up from $5.2 million in 2006, according to the Center for Responsive Politics, a nonprofit that tracks political spending. Of that, “liberal” special interests spent at least $41.3 million, or 22.5 percent; “conservatives” spent most of the rest.

In all likelihood, “dark money” expenditures were higher because political nonprofits only have to report money spent within 30 days of a primary election and 60 days of a general election.

Rep. Walter B. Jones, R-N.C., is the only Republican who has signed on to cosponsor a campaign finance reform bill this session that’s widely supported by Democrats. Jones said he has pushed for campaign finance reform for nearly three decades — and continues to do so despite his party’s general lack of interest.

Why? Because he believes money has too much influence in elections. Jones predicts it will take a major scandal, perhaps on the scale of Watergate, to prompt either party to reform the system.

“I’m not sure anyone in Washington wants to change it,” Jones said. “They talk about it but they don’t do much about it. Both parties benefit from the current system.”

Craig Holman, government affairs lobbyist for the nonprofit Public Citizen, said he believes Democrats are more serious about reform now than they were in the past.

But there’s a caveat.

“Any time a party is in control of the federal government, they tend to be not as enthusiastic about changing the rules of elections, because they’re winning,” Holman said.

Obama was “a big disappointment” to advocates of campaign finance reform, he said.

Obama knew how to work within the post-Citizens United framework, and he didn’t push for the reforms he championed on the campaign trail, said Holman and Paul S. Ryan, vice president of policy and litigation at the nonprofit Common Cause.

“A lot of Democratic Party politicians believe in the legislation, but when push comes to shove and they seek the advice of their lawyers, they often back away or their support weakens,” Ryan said.

Obama’s office did not respond to requests for comment.

Rep. John Sarbanes, D-Md., said Democrats were busy juggling health care reform and climate change legislation when Obama first took office and Democrats had the majority in Congress, leaving little time for campaign finance reform.

Plus, some Americans’ anger toward and resentment of special interests hadn’t reached the fever pitch of today, Sarbanes said.

Nearly half of the people who responded to a Center for Public Integrity-Ipsos poll conducted last week said they opposed Citizens United, compared to 30 percent who said they support it. And 57 percent of respondents said they favor limiting the amount of money super PACs can raise and spend.

Raising money, or “dialing for dollars,” is quite time-intensive for members of Congress, but the public doesn’t seem to realize it.

According to the Center for Public Integrity-Ipsos poll, 58 percent of respondents believe congressional members spend 10 hours or less a week fundraising. But members, on average, spend 20-to-30 hours per week fundraising, according to research by Issue One.

“Campaign finance reform appears to be one thing Republicans and Democrats can agree on, with a majority in both parties coming out in support for limits on super PACs and increased transparency on nonprofit donors,” said Chris Jackson, vice president of public affairs at Ipsos.

Rep. David Cicilline, D-R.I., said there’s overwhelming support for money-in-politics reforms on his side of the aisle. And there’s no question Democrats will reform the system if given another opportunity, he insisted.

“We’re seeing the consequences of a democracy that is driven by the checkbooks of a few rather than the voices of the many,” he said.

Laying groundwork in the age of Trump

Spending by so-called “outside” groups — super PACs, nonprofits, unions and political organizations — soared to more than $1.6 billion in 2016 from $286 million in 2006, according to the Center for Responsive Politics.

The portion of that considered “dark money” grew to 11.2 percent last year — up from 1.8 percent in 2006.

There’s no way to comprehensively track how much “dark money” is coming from foreign interests, because it is largely untraceable. Still, the potential for foreign influence has attracted attention on Capitol Hill.

“The same dark money channels that are protected by the big special interests who use them to such effect are also fully available to Vladimir Putin,” Sen. Sheldon Whitehouse, D-R.I., said during an informal hearing he called earlier this summer. “If the channel is dark enough to hide the hand of Charles and David Koch, it is dark enough to hide the hand of Vladimir Putin.”

If Democrats keep their word and push for reforms, the legislative agenda they’ve introduced is a preview for the changes they’ll seek if they regain a majority.

This year, Democrats have proffered 24 bills that relate to money in politics, compared to six filed by Republicans, according to an analysis by Issue One. Only a handful of those proposals have more than one sponsor from the other side of the aisle.

Cicilline proposed a bill earlier this year, the DISCLOSE 2017 Act, that would require the disclosure of certain campaign donations and funders behind political ads. H.R. 1134 has 128 co-sponsors — all Democrats.

“It’s designed to bring greater transparency at the very least until we can prevent corporations from spending money in our elections,” Cicilline said in an interview. “Let’s make sure people know, where did the money come from? Who is behind the ad? Who paid for it?”

Cicilline said Republicans have been unwilling to move forward on his bill — it’s been referred to committees but hasn’t had a hearing.

But he said it would be a mistake to wait to introduce it until Democrats had control of Congress again. Even though it’s unlikely to pass, he hopes it can be used as a tool to hold other lawmakers accountable.

“Members of the public need to know, does my member of Congress or does a candidate running for Congress support reforming our political system and fixing our democracy,” Cicilline said.

Sarbanes has proposed another sweeping change to campaign finance laws, but he too acknowledged the struggle he’s facing.

Sarbanes’ Government By the People Act of 2017 (H.R. 20) has 156 co-sponsors, and all but one — Jones — is a Democrat. The bill aims to create a system that increases the number of small-dollar donors to political campaigns. It does this, in part, through tax credits and a new pilot program that gives voters campaign contribution vouchers that they may distribute to candidates they support.

The bill was introduced in January and referred to three committees for consideration. And it’s sat, untouched, ever since.

In touting the By the People Project in July, Sarbanes said Americans harbor deep-seated anger and frustration because they feel their voices have been drowned out by special interests and big donors.

“The president said … he was going to drain the swamp, that he was going to bring accountability to Washington,” Sarbanes said. “He’s basically said to the big money and the special interests, ‘If you pay for the red carpet, I’ll roll it right into the White House and give you influence.’”

Respondents to the Center for Public Integrity-Ipsos poll offered a wide range of answers when asked what “drain the swamp” means to them. Responses included reining in special interest groups, reducing the influence of money in politics, wiping out government debt and getting rid of career politicians. Some said they simply don’t know.

The small-dollar matching system and public campaign financing Sarbanes has proposed would dilute the voices of the wealthy few who today contribute the most money to political campaigns, Sarbanes said.

In an interview, Sarbanes said his bill probably won’t be passed by the current Congress, but it’s important to put it out there now to give Americans a choice in the midterm elections, he said.

“We’ve got to put positive, constructive solutions in front of the public and say, ‘Here is what we would do if we had the gavel,’” Sarbanes said. “People here on the Hill move on issues when they feel pressure coming from constituents.”

Only two of the Democrats’ 24 money-in-politics bills have more than one Republican cosponsor.

One is Rep. Derek Kilmer’s Restoring Integrity to America’s Elections Act (H.R. 2034), which has five Democratic and six Republican cosponsors. Kilmer is a Democrat from Washington.

The bill would shore up the Federal Election Commission, which is charged with enforcing and administering campaign finance laws, and attempt to eliminate the ideological gridlock that’s plagued the watchdog agency for years. Kilmer wants to accomplish this, in part, by reducing the number of commission members from six to five, which would eradicate deadlocked votes.

It was referred to the House Committee on House Administration in April, but it hasn’t had a hearing yet.

Other money-in-politics bills that have been filed by Democrats this year — and appear to have little chance of passing — include:

  • The Keeping Our Campaigns Honest Act of 2017, filed by Rep. Ben Ray Luján, D-N.M., which would direct the Federal Communications Commission to require the inclusion of the names of major donors in political ads. (H.R. 1439)
  • Rep. Raul Ruiz, D-Calif., introduced the Campaign Spending Integrity Act (H.R. 838), which would prohibit a candidate from spending campaign cash on vendors owned or controlled by the candidate or by an immediate family member.
  • The Get Foreign Money Out of U.S. Elections Act (H.R. 1615), sponsored by Rep. Jamie Raskin, D-Md., which would apply the ban on contributions and expenditures by foreign nationals to “foreign-controlled, foreign-influenced, and foreign-owned domestic corporations.”
  • Sen. Jon Tester, D-Mont., proposed the Senate Campaign Disclosure Parity Act (S. 298), which would require Senate reports and statements to be filed electronically. Seven of the bill’s 43 co-sponsors are Republicans.
  • Democrats are also attempting to reverse Citizens United by proposing constitutional amendments.

    One such proposal, sponsored by Rep. Theodore Deutch, D-Fla., (H.J.Res. 31), would give Congress and the states the ability to set “reasonable limits” on the raising and spending of money to influence elections.

    The amendment also would give Congress and the states the power to prohibit corporations or other entities from making political expenditures, a controversial component of Citizens United. A similar constitutional amendment proposal, S.J.Res. 8, has been filed in the Senate by Sen. Tom Udall, D-N.M.

    Another proposed constitutional amendment would specify that rights guaranteed under the Constitution are for people only — not corporations and other entities (H.J.Res. 48, by Rep. Richard Nolan, D-Minn.).

    But constitutional amendments are exceedingly rare. An amendment requires two-thirds of each congressional chamber to vote for it. Then, three-fourths of all U.S. states must ratify the amendment for it to become part of the Constitution.

    The most recent, the 27th Amendment, which deals with congressional salaries, didn’t get ratified until 1992. Congress submitted what would become the 27th Amendment to the states for ratification more than 200 years earlier, in 1789.

    Since 1993, Congress has considered more than 1,000 constitutional amendment proposals. All of them have failed.

    There’s also the issue of supporting a constitutional amendment that would, in practice, tamper with 1st Amendment rights. It’s a concern shared by advocates across the political spectrum.

    Democrats rightly are trying to tap into populist outrage over wealthy campaign donors, said Daniel I. Weiner, senior counsel for the Brennan Center’s Democracy Program at New York University’s School of Law.

    “It’s also a political reality that the Democrats right now aren’t going to get anything passed, so they’re messaging,” he said.

    And “messaging,” at least in part, means raising money off their fight against political money.

    The other side

    Republicans control Congress, so it stands to reason their bills have a better chance of passing. They’ve introduced six bills that relate to money in politics.

    Rep. Steve Scalise, R-La., filed the Free Speech Fairness Act (H.R. 781), cosponsored by 57 Republicans. The bill amends the Internal Revenue Code to permit tax-exempt organizations to make statements related to a political campaign without losing their tax-exempt status.

    The bill has been referred to the House Committee on Ways and Means. An identical bill on the Senate side (S. 264), sponsored by Sen. James Lankford, R-Okla., has been referred to the Committee on Finance.

    Other Republican-sponsored bills include one that would end a largely defunct system for taxpayer financing of presidential election campaigns (H.R. 133) and one that would expand the ability of trade associations to seek contributions from employees of their member corporations (H.R. 2101).

    None of the Republican bills would crimp campaign spending or expand disclosure requirements.

    “The Republicans are making a political calculation that’s aligned with their ideology that the majority of the outside money that’s going to come in, particularly between now and 2018, is going to benefit Republicans,” said McGehee of Issue One. “That’s the bet that [Senate Majority Leader] Mitch McConnell has made from the get-go.”

    Only one of the Republicans’ bills appears to have bipartisan support.

    Rep. Paul Gosar’s Stop Foreign Donations Affecting Our Elections Act has 37 co-sponsors — 11 of whom are Democrats. Gosar is a Republican from Arizona.

    His H.R. 1341 would amend the Federal Election Campaign Act of 1971 to prohibit campaign donations made with credit cards with foreign billing addresses. U.S. citizens living abroad who want to contribute with credit cards would have to provide the mailing address that they use as a registered voter.

    Gosar introduced the bill in March, and it’s languished in committee since then.

    Sen. Ted Cruz, R-Texas, offered up a measure last year that would have eliminated contribution limits for federal candidates. The bill, which also called for instant disclosure of political contributions, would almost certainly render super PACs obsolete, as people could contribute as much money as they wanted directly to politicians’ own campaign committees.

    Cruz’s office said he was unavailable for an interview because he was coordinating response to Hurricane Harvey. But Cruz in November lamented the nation’s campaign money system, declaring it “absurd” — serving the interests of neither free political speech nor transparency.

    Bradley A. Smith, a former Republican chairman of the FEC, said campaign finance deregulation, in general, makes sense.

    Smith, founder and chairman of pro-deregulation nonprofit Center for Competitive Politics, sees many of the Democratic proposals on the table now as efforts to rig the system in their favor.

    The FEC, for example, isn’t as divided as some people make it out to be; the vast majority of money raised and spent in U.S. elections is already disclosed; and government probably shouldn’t be in the business of financing campaigns, he said.

    There’s strong reason to believe people such as Sens. Chuck Schumer and Sheldon Whitehouse want reform because “they think it will stifle speech that opposes their agenda,” Smith said.

    ‘Existential threat’ vs. the long game

    Sixteen Democratic senators popped in and out of Whitehouse’s July hearing at the Capitol to discuss their ongoing dismay at Citizens United and the potential added threat of foreign entities’ financial involvement in the 2016 election.

    Five panelists took turns painting the picture in increasingly bleak brushstrokes.

    “We have an existential threat to our democracy right now,” said American Enterprise Institute resident scholar Norman Ornstein.

    In the realm of campaign finance reformers, there are those who see the current system through a lens of absolute urgency — i.e., “the republic is at stake.” They believe the country is on the verge of plunging into plutocracy.

    And there are those who believe plutocracy is nothing new; America has always been ruled by an elite class, but through the decades she has marched, slow and steady, toward inclusiveness.

    To them, Citizens United was a setback, but one they hope is temporary. They’re in it for the long game.

    Put Craig Holman, government affairs lobbyist for the nonprofit advocacy organization Public Citizen, in the former camp.

    For Holman, time is ticking for American democracy, and Citizens United is largely to blame.

    Campaign finance laws are meant to put a wall between the nation’s equality-based political system and an economic system that’s based on inequality, Holman said. If the inequality of capitalism overwhelms the political sphere, democracy collapses, and those with money take control.

    Holman sees the situation as dire, just as Schumer, Ornstein and Noble did on Capitol Hill last month.

    “If voters don’t react in 2018 to what’s going on, I think we’re well on a course of no return,” Holman said. “If they don’t react in 2018 congressional elections, we’re going to re-elect Trump in 2020, and it’ll just go on from there. So in other words, I’m saying about a year and a half.”

    Ryan, of Common Cause, is in the latter camp of reformers.

    Ryan believes the Supreme Court erred gravely in its Citizens United decision, but he bristles when he hears fellow campaign finance reformers pine for the old days when monied interests didn’t control politics.

    “That time never existed,” he said.

    While Citizens United was a bad decision, Ryan said, the system that preceded it was far from perfect. The United States is more inclusive now than it was decades ago.

    “I feel like I’m part of this, not 10- or 15- or 20-year trajectory of campaign finance reformers improving democracy, but this several-hundred-year effort of marginalized and excluded communities fighting for their political rights,” Ryan said.

    Most of the action related to campaign finance reform is happening on the local and state levels now, Ryan said.

    Related article: “Statehouses, not Congress, hosting biggest political money fights

    McGehee of Issue One said campaign finance reform on the federal level won’t happen without bipartisan agreement — and it’s not something that can accomplished overnight. She points to civil rights and smoking bans.

    “If I walked in the door of any Republican other than Walter Jones on the House or Senate side and I said, ‘Hey, I want to talk about public financing,’ they’re going to say, ‘Don’t let the door hit you in the ass on the way out,’” McGehee said. “It’s a nonstarter.”

    But if she approaches politicians to talk about how much time they feel like they have to spend raising money for their campaigns, she gets a far more enthusiastic reaction — and an opening for conversation.

    “It’s like feeding a baby,” McGehee said. “You don’t give a baby steak.”

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