Right before Nixon’s re-election in 1972, the American Civil Liberties Union (ACLU) sued the New York Times for refusing to print an ad.
It was called “An Open Letter to President Richard M. Nixon in Opposition to His Stand on School Segregation.” Why wouldn’t the Times print it?
Because the Federal Election Campaign Act required groups such as the ACLU to submit certifications from each of the 102 politicians who signed the letter that the cost did not exceed each campaign’s spending cap.
The ACLU and its affiliate, NYCLU, refused. It instead sued the paper, and won on First Amendment grounds.
When law collides with historical forces, things can get really interesting. Even if we believe too much money corrupts elections, the question remains: Is campaign finance reform even possible without amending the Constitution?
Political campaigning in an arms race
Campaign finance wasn’t a big issue until the mid-1800s, when political campaigning itself went from unseemly to standard practice. Political parties (Whigs and Democrats) had formed.
Even George Washington was not immune to wanting to influence the process, though. After losing his first election in 1755, he set up a buffet with drinks–punch, wine, strong cider–for friends at the polling booth. After his effort succeeded, the Virginia House of Burgesses banned such practices.
That didn’t last long.
When national campaigns such as Jackson’s needed to reach out to a broader public, the doors to big spending opened. Today’s exceptionally well-heeled Congress cannot afford its own campaigns. Each new presidential election breaks spending records and politicians spend more time than ever raising money. The spending arms race is on.
Pressure builds for campaign finance reform
By the Gilded Age of the late 1800s, corporate money owned Congress. Railroads gave congressmen free lifetime rail passes in return for political favors. The first salvo, the Tillman Act in 1907, prohibited corporations and national banks from contributing directly to general election campaigns.
Loopholes were found, new laws were passed, and Supreme Court decisions weakened these laws, in a cycle that has continued for decades. As Justices John Paul Stevens and Sandra Day O’Connor wrote in 2003: “Money, like water, will always find an outlet.”
Since the 1970s, the Federal Election Commission (FEC) has managed public financing of elections (the box you can check on your tax return) giving candidates the option of federal funds if they refuse private donations.
In 1976 Buckley vs. Valeo upheld limits on contributions from individuals, disclosure rules and the public financing of campaigns. It also allowed unlimited expenditures on speech–ads could endorse or attack a candidate, or endorse or oppose any issue, but could not use the words: “vote for,” “defeat” or “elect.”
Those magic words didn’t appear to be the problem however.
Obama refuses public campaign financing
Tax-exempt “527” money flowed in from non-profit groups and “soft money” from individuals, corporations and unions, who simply formed PACs to allow them to donate to parties, but not to candidates.
The Bipartisan Campaign Reform Act (aka McCain-Feingold) of 2002 then banned soft money, but that law did not last long. While it was in effect, it wasn’t enough to dissuade then-candidate Barack Obama from being the first to refuse federal funds. Going back on his primary season pledge, he argued the system was “broken” and that the Republican National Party was able to “game the system” with its financial advantages. Obama was also the first to harness the “donate” button on a Facebook page, generating huge sums in small amounts from average citizens.
In fact, McCain would lose the campaign finance reform battle before he lost the election to Obama in 2008. The political rivals agreed upon one thing, however.
They both hated the Citizens United decision.
Citizens United stirs controversy
McCain-Feingold was first chipped away by a Right to Life group in Wisconsin. The law said that within 30 days of a primary or within 60 days of a general election, corporations and unions can’t pay for political ads. The Supreme Court found that unreasonable.
Then the final blow to McCain-Feingold in 2010: Citizens United v. the FEC. This ruling put the First Amendment rights of corporations, unions and other groups above concerns about money in politics. In the majority decision, Justice Anthony Kennedy said, “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
That statement was fiercely disputed by President Obama and by most of the public. In 2010, a Pew Research Center poll said 68 percent of Americans disapprove of the Supreme Court’s decision to allow corporations to make expenditures on behalf of candidates during elections.
Opponents contend that big money corrupts when candidates do the bidding of their donors. The counterargument is that politicians raise money from donors whom they already agree with and would have voted in their interest regardless.
Four years later the Court struck down caps for individuals donating to federal campaigns and political parties ($48,600 every two years for all federal candidates and $74,600 total to political parties and committees).
Free speech is a bitch
The law can’t change the fact that money does give one more opportunities to be heard. The controversy turns on the idea that corporations, as Mitt Romney said, “are people too.” He was lambasted for that comment, but the Court, Justice John Paul Stevens wrote in his Citizens United dissent, has held repeatedly that corporations, including newspapers, banks and unions, share First Amendment protections with individuals.
The debate, whether groups deserve unlimited First Amendment protections, pits liberals against liberals.
Free speech advocates say all political speech matters, whether from a corporation, union or non-profit group such as the ACLU or NRA. The ACLU puts the First Amendment first. Its solution is to expand public financing, demand transparency and enforce laws restricting the relationship between PACs and candidates. Amending the Constitution to say that corporations are not constitutionally protected is a bad idea, it says.
Congress can demand transparency, but so far it has not. This stokes fears of “dark money” coming from outside the country and influencing elections, as our government found that Russia did in the 2016 election.
The problem is tricky and the reforms, so far, don’t stick.
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