The consequences may be unintended, but it doesn’t change the fact that the number one evil in the electoral process today can be traced directly to the doorsteps of the political campaign reforms of the last 50 years.
In the naïve belief that they could drive money out of politics reformers proposed and helped pass laws that are responsible for the increase in negative campaigning, reduced transparency in tracking the source of campaign spending, and the wildly out of control actions and spending of independent campaign committees.
It was a foolish notion at the start and has been proven foolish time and again by the consequences of the so-called reforms. What they have demonstrated is that not everything called reform is a good idea.
Instead of driving money out of politics, the reforms of the last half century gave birth to something called independent expenditures committees. These groups raise money in unlimited amounts from unlimited sources, obfuscate the source of the money, and are accountable to no one for the content of their often negative and deceptive campaign messages.
These reformers rail against the Supreme Court decision known as Citizens United for opening the door to unfettered spending by corporations, unions and other groups. That decision holds that the freedom of speech clause in the first amendment to the constitution prohibits the government from restricting independent campaign expenditures.
Citizens United opened the door for that spending, but independent spending began long before Citizens United. That court decision simply accelerated and expanded it.
Here’s how it works. Let’s say Pat is running for state Assembly and the state-imposed limit on contributions to Pat’s campaign is $3,000. Pat works hard and obtains maximum contributions from a large number of donors – friends, relatives, unions, developers, local business owners. It is important to these donors that Pat be elected so they form an independent expenditure committee, say something called Citizens for Good Government. There are no limits on how much any of them can give to that committee. Sometimes more than one committee is created – Police Officers for Public Safety, Firefighters Action Fund, Business Leaders for a Strong Local Economy, Working People United. Under the law, each of these can spend, separately or jointly, as much as they can raise to support Pat. They just can’t coordinate what they are doing with Pat, Pat’s campaign, or anyone affiliated with the campaign.
This all began in the 1970s, in the wake of the Watergate scandal. Reform groups sprung up and pushed for contribution limits and public reporting of fundraising and spending. Of course, Watergate had nothing to do with campaign fundraising, but the reform groups seized the opportunity.
Passage of the Federal Elections Campaign Act led the way, limiting contributions to candidates for federal office. At the urging of reform groups, most prominent being Common Cause, legislatures and city councils began to enact contribution limiting laws at the local and state level. It quickly became a matter of “if you call it reform no elected official would dare oppose it” and voters were going to approve it if it was on the ballot.
There are so many things wrong with independent expenditures that it almost defies listing. Here are the big four.
1. TRANSPARENCY – If a tobacco company, oil company, environmental organization, or developer were able to give a $50,000 contribution to a candidate, that candidate would have to report it in their campaign filings and any voter who wanted to look at that filing could see the contribution. The opposition would be able to attack that contribution and voters could make decisions knowing the contribution occurred. But if that same donor gives $5 million dollars to an independent expenditure committee supporting that same candidate, the ability of a voter to know about it becomes more complicated. That committee might pass along some or all of the money to other independent committees, which then could pass it along to still others. At each step it becomes more difficult to track the money or explain what’s going on to voters. Ultimately, it gets spent to promote one candidate or attack the other.
2. CANDIDATES ARE HELD ANSWERABLE FOR THINGS THEY DON’T DO – At a public forum, the candidate commits to not post signs on telephone polls or public parkways. A week later 6,000 signs pop up on polls and parkways across the area. They are paid for by an independent committee and that may be disclosed in small print on the sign. Voters driving by see the signs and believe the candidate lied. There’s nothing the candidate can do but deny putting the signs up and urge that they be taken down.
3. HIT PIECES (AKA attacks) – Scurrilous mailers arrive at the homes of voters. They are packed with lies and distortions. Maybe one says the candidate has been arrested or has withdrawn from the race. Maybe one lies about the candidate’s position on an important local issue, like the banning of gasoline powered leaf blowers. There’s not a thing either candidate can do about it. The candidate being attacked can call on the other candidate to disavow the mailers and urge the independent committee to stop sending them, which the other candidate can do with no effect. The candidate benefiting from the mail can tell the local papers and groups of voters that his or her campaign didn’t send the mailers and denounce them, which accomplishes nothing. For the attacked candidate to send out counter mailers calling out the lies would have the effect of a) costing the campaign valuable resources, and b) repeating the lie in order to refute it.
4. DIRTY TRICKS – Two Democrats and one Republican are running for an office in a heavily Democratic district. It’s clear which of the Democrats will finish first in the Primary Election because they have the most resources and name identification. But that candidate would rather square off against the Republican in the run off than have to run against the other Democrat. Up steps an independent committee and suddenly Republican voters are inundated with mail and telephone calls reminding them how important it is to vote for the Republican candidate. The mail is identified as coming from Community Republicans United, but it is paid for by a network of unions and businesses that support the Democrat. This sometimes is known as “choosing your own opponent.”
Each of the above examples actually has happened. They are not made up. And they probably have happened hundreds of times in cities, counties and states across the nation.
I would rather see a local developer give a candidate for city council a $10,000 contribution than see that same developer give the money to an independent expenditure committee. In the first instance the candidate could be called upon to explain his or her position on development. In the second instance the candidate could simply claim to know nothing about it.
What can be done to reign in independent expenditures or regulate the content of what they do?
Probably nothing. It’s that pesky free speech business in the first amendment. Court decisions have weighed heavily in support of the right to political free speech, going so far as to call it deserving of the highest degree of protection. Courts have held that a particular limit on contributions to a candidate might be unreasonably low, but the concept of limits is acceptable. Courts also have said that to prohibit or limit independent spending is a violation of the free speech clause in the constitution.
I asked several political consultants if they thought independent expenditures would go away in the unlikely event that limits on contributions to candidates were repealed and the money could go directly to the candidates. The unanimous opinion was that this genie isn’t going back in the bottle.
The other genie that is permanently out of the bottle is the push for even further limits and reforms. The harsh fact is that an industry has formed in the name of political reform. Non-profit organizations exist to raise money to pay staffs to advocate and lobby for reforms. Those organizations aren’t going to go away and politicians aren’t suddenly going to become willing to oppose reforms, no matter how dangerous or ill-considered they may be.
So, we’re stuck with it and in the months between now and the November 2024 election we will see more of it than ever before. Complain about it. Be offended by it. But remember where it all started.