Overview of the Problem

MONEY IN POLITICS: A GILDED AGE ON STEROIDS

The United States has become a shell democracy.

Under the Roberts Court, our nation has entered an era of historically unprecedented public corruption due to a Niagara of big money flooding our political campaigns, putting public office and public policy up for highest, increasingly secret, bid. Based on the legal opinions of a five-judge Court majority, a plutocracy of concentrated individual, financial and corporate wealth has captured our elections, banished ordinary voters to the far corners of the public square, and made a mockery of democratic self-government. Stratospheric campaign costs have indentured office seekers to large corporations and rich donors, drowned the voices of ordinary citizens, and further deepened public cynicism about the integrity of the democratic process in the United States.

MONEY IN POLITICS: FOUR FEDERAL COURT CASES AT WAR WITH DEMOCRACY

In Buckley v. Valeo, decided January 30th, 1976, the Court concluded that spending money is a form of First Amendment protected speech and that while contributions to political campaigns could still be limited in the interest of preventing corruption or the appearance of corruption, campaign expenditures could not.

Citizens United v. FEC, decided January 21st, 2010 went much further by lifting all limits on campaign contributions by corporations, unions, associations, and other artificial entities, provided that the contributions and expenditures go to and are made by so-called “independent expenditure” political action groups, and extended First Amendment unlimited speech protections to corporations and other artificial entities. The “independent expenditure” requirement was meant to safeguard against the Roberts Court’s extremely narrowed redefinition of corruption as limited to direct quid pro quo bribery, or its appearance, that threw out a broader and more nuanced understanding of political corruption that had governed the Court’s reasoning in the past and had helped keep the power of big money in politics under stricter, albeit still insufficient, control.

The “independence” of these groups has proven in practice to be a figment of the Court’s majority imagination.

Citizens United has unleashed huge sums of money, especially from corporate treasuries, into our elections. It is used to finance deeply misleading, come-from-nowhere political attack ads that insult the electorate and debase democracy.

Speechnow.org v. FEC, decided six months after Citizens United on June 10, 2010 at the U.S. Court of Appeals, DC Circuit, did for a tiny minority of rich citizens what Citizens United did for corporations and other artificial entities, i.e., it lifted all contribution limits by individuals to outside spending groups. The result? In 2012, it allowed one billionaire to almost single-handedly finance the entire presidential campaign of a major candidate in a major political party.

The sources of much of these funds, aka, “dark money,” are undisclosed, and its amount as a proportion of total big money contributions to Super PACs has increased during the 2014 election cycle.

McCutcheon v. FEC, decided April 2nd, 2014, struck down the aggregate contribution limit that one donor is permitted to contribute to all federal candidates, parties and political action committees combined. Prior to this decision, the aggregate contribution limit per donor in any two-year election cycle was $123,200, an amount far beyond the reach of the vast majority of American households. With McCutcheon, however, one rich donor can now legally contribute more than $3.5 million to a single party’s candidates and to party committees. The NGO Demos estimates that McCutcheon will add over $1 billion in additional campaign contributions through 2020. (Demos, “What is McCutcheon v. FEC?”).

The Coalition to Restore Democracy believes that McCutcheon is little less than legalized political bribery.

MONEY IN POLITICS: WHY IT MATTERS

The judicial rulings summarized above established or expanded two deeply corrupting legal doctrines: 1) the narrowing of the definition of political corruption to simple quid pro quo bribery, and 2) the radically antidemocratic proposition that spending money, in and of itself, is speech entitled to First Amendment protection and that therefore cannot be limited.

Three in four Americans oppose these profoundly mistaken decisions, and an overwhelming 96% believe that the influence of big money in politics has severely corrupted our elections and must be remedied.

These Supreme Court rulings are not conservative jurisprudence. Rather, we believe that they are a series of results-oriented decisions by an activist Court majority that wants to entrench big money and global corporate interests as controlling forces in American politics and government. They are forcing a radical reversal of 150 years of hard won progress toward a more just and inclusive society by removing legal barriers put in place to keep our elections free and fair and to assure that ordinary voters command sovereign control of government.

Citizens United and McCutcheon, handed down by a Court whose Chief Justice had clearly committed in his confirmation hearings to upholding the principle of stare decisis, or deference to judicial precedent, struck down over 75 years of decisions that carefully balanced the right of free speech with political spending limits established to fight corruption. Cumulatively, these Court rulings have turned back the nation’s political clock to an oligarchy of great wealth whose extreme undue influence has reduced the voices of ordinary citizens to a faint echo in the halls of power. (Testing Theories of American Politics: Elites and Average Citizens; Gilen and Page, 2014)

Since Citizens United and Speechnow, the exponential growth of unlimited outside Super PAC money at the Federal level alone is illustrated by this statistic: in the 2010 election cycle, 83 Super PACs spent $63,271,000. In the 2012 cycle, 1,310 Super PACs spent $609,418,000, an 863% increase. (Opensecrets.org; Outside Spending).

In the 2010 election cycle, one-third of all contributions to super PACS came from only ten individuals, and about two-thirds from 100 individuals.

Those who support Citizens United have claimed that a 28th Constitutional Amendment declaring that money is not speech and can be regulated would undermine the First Amendment. The opposite is true. Historically, the First Amendment had never been interpreted to mean that there could be no limitations whatsoever on the amount or volume of speech. Previous courts recognized that the content of political speech must always remain free from limitation, but that the integrity and credibility of the democratic process in the mind of the citizenry must also be protected by placing content-neutral limits (applied equally to everyone) on political contributions.

The First Amendment was also meant to create and protect a free and vigorous marketplace of ideas and opinions vital to a living democracy. However, though these decisions, the Court has declared war on genuine free speech by allowing the very rich and powerful corporate interests to seize the public microphone, saturate the major media with a narrow range of self-interested views, shut out disfavored candidates, define the content and limits of public debate in elections, and generally control the nomination process for public office.

Because Congressional legislation cannot reverse Supreme Court rulings, a 28th Amendment to the Constitution is therefore necessary to overturn these terrible decisions and the anti-democratic legal doctrines that underlie them.

Money is power, not speech. Citizens United, et. al., presents a radical threat to democracy, for us and for our grandchildren.

The Coalition to Restore Democracy believes that returning political sovereignty to the People is not a Democrat or Republican issue, not a rural or urban or upstate or downstate issue. It is an American Issue.