Fighting the Influence of Big Money In Politics

Sally Hayati, VP, Environmental Priorities Network

September 27, 2014


Our political system is awash with cash from corporations and wealthy donors. Ordinary Americans feel that their
opinions dont count; low voter turnout is a reflection of that sense of helplessness. Following the Supreme Court
decisions Citizens United and McCutcheon striking down limits on campaign contributions, opposition has begun to
grow. The findings of a 2014 study from Princeton University
1
show that these feelings are warranted:
[E]conomic elites and organized groups representing business interests have substantial
independent impacts on U.S. government policy, while average citizens and mass-based interest
groups have little or no independent influence... [O]ur estimate of [the] average citizens influence
on policy making is near zero. In the United States, our findings indicate, the majority does not
rule -- at least not in the causal sense of actually determining policy outcomes. When a majority of
citizens disagrees with economic elites and/or with [business oriented] organized interests, they
generally lose.
Our democracy more and more resembles a plutocracy, not surprising given that income and wealth inequality is
greater in the US than in any other industrial nation.
2
Various campaign finance laws have been passed since 1867,
with only modest success at limiting the influence of money in politics. The McCain-Feingold law of 2002 was meant
to stop the flow of unlimited soft money to candidate campaigns and political parties. But corporations (for-profit
and nonprofit entities) and wealthy donors simply shifted their donations to outside groups, following a strategy
pioneered by Democrats during the Bush years. From 2004 to 2008 the level of outside money increased 164%; it
rose 135% from 2008 to 2012.
3
Most of this increase occurred before the Citizens United Decision in 2010 and all of
it occurred before the McCutcheon decision in 2014.

Even following McCain-Feingold, individuals could write unlimited checks to 527 groups (issue advocacy and voter
mobilization) and corporations could write unlimited checks to 501(c)(4) or social-welfare groups. Such groups could
hire lobbyists or spend money to make "issue ads," but there were limits. Ads couldn't engage in express
advocacyexplicitly advocating votes for specific candidatesor electioneeringmentioning a candidates name
within 30 days of a primary or 60 days of a general election. They also had to publically identify their funders.

But in January 2010 the US Supreme Court ruling Citizens United v FEC lifted even these few limitations. Now 527 and
501(c)(4) groups can use their money to make a direct case for specific politicians, right up to Election Day, and donor
identities need not be revealed. The Citizens Uniteds decision also granted corporations the ability to use their
general treasury money for political expenditures. This, combined with the March 2010 federal appeal court decision
SpeechNow.org v FEC lifting contribution limits to groups whose sole purpose is funding independent expenditures,
led to the development of Super PACs. Technically known as independent expenditure-only committees, Super PACs
may accept unlimited amounts of funds from any source, including large corporate or individual contributions, to
advocate for the election or defeat of federal candidates. They may not donate directly to candidates and must
disclose donors.
4


Then in April 2014 the Supreme Court decision McCutcheon v FEC eliminated long-standing limits on "aggregate"
donations of $48,600 to candidates and $74,600 to state and local political party committees during each two-year
cycle. Donors still are limited to $2,600 per candidate in primaries and another $2,600 in general elections, $32,400

1
http://www.princeton.edu/~mgilens/Gilens%20homepage%20materials/Gilens%20and%20Page/Gilens%20and%20Page%202014-
Testing%20Theories%203-7-14.pdf , Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, Martin Gilens.
2
http://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.27.3.3
3
http://www.nytimes.com/2012/07/22/magazine/how-much-has-citizens-united-changed-the-political-game.html?pagewanted=all&_r=0
4
https://www.opensecrets.org/pacs/superpacs.php
Sally Hayati, VP Environmental Priorities Network, http://sallyhayati.wordpress.com 2
to political party committees per year, and $5,000 per PAC per year. As a result, instead of being limited to a total of
$123,200 donations for the 2014 elections, a wealthy donor giving the maximum amount to every House and Senate
candidate and political committee in their party could now give nearly $6 million. According to Public Citizen and
Justice Stephen Breyers dissenting opinion, a single donor could write a $5.9 million check to a joint fundraising
committee controlled by an elected politician or party official, which then could distribute the money to candidates
and local or state committees.
In 2012 only 591 wealthy donors nationwide gave the maximum allowable amounts to federal
candidates of $123,200, according to the Center for Responsive Politics. The McCutcheon decision
therefore benefits and privileges a miniscule percentage (<< 0.01%) of extremely wealthy
Americans, who may now donate up to $6M each.
The Supreme Court claims that the influence bought by the economic elite through campaign contributions is
not a mark of corruption but a legitimate result of free speech. In the McCutcheon decision, Chief Justice
Roberts defines corruption as actions punishable by bribery statutesdollars for political favors. The public has no
legal interest in limiting campaign contributions that are not overt bribes, because (by Roberts definition) no
corruption results. But conveniently for big donors, federal politicians are rarely prosecuted even when outright
bribery occurs. The Constitution states that any "speech or debate" in the House or Senate by a member of Congress
"shall not be questioned in any other place." This so-called Speech or Debate Clause makes it impossible for
prosecutors to gain direct access to congressional materials using a search warrant or to introduce into evidence
anything that a member of Congress does as part of official duties. This means that laws, bills and floor speeches
cannot be used to prove bribery or corruption.
5

With the Supreme Court vetoing campaign finance laws and the Speech Clause of the Constitution
hampering bribery investigations, individual and corporate wealth has even greater latitude to
subvert popular democracy.
A large majority of Americans of every political persuasion approve the limits on campaign contributions that are
being vetoed by the federal judiciary,
6
yet there is no provision in the constitution for an override of a Supreme Court
veto. To correct this situation, therefore, many Americans advocate passage of a constitutional amendment
stipulating, 1) Money is not speech, 2) Corporations are not entitled to the same rights as natural persons, and 3)
Congress and the states can limit election-related spending to ensure that all citizens, regardless of wealth, can
express their views to one another and their government on a level playing field.

With such an amendment in place it would be possible to pass new campaign finance laws, without the danger of a
judicial veto. This is a clear improvement. But can we expect these new laws to have more success than past laws at
curtailing the influence of big money in politics? And would the proposed amendment significantly limit the Supreme
Courts ability to veto other progressive federal legislation? There are many ways to interpret the constitution,
without evoking personhood and natural rights for corporations. So long as the judicial branch retains the power of
judicial review without possibility of override, the American people must fight battles without end. The Supreme
Court may veto laws passed to address global warming and other environmental rifts, just as it vetoed New
Deal laws in the 1930s, and just like it recently vetoed key elements of the Voting Rights Act.

If the constitutional amendment were to eliminate the right of judicial review over any federal legislation, not
just campaign finance control, the democratic character of our government would significantly increase. The
amendment could take one of several forms, e.g., to stop all judicial review, require unanimous decisions in order to
veto legislation (shown below), require a super majority, or define a legislative override for judicial vetoes, just as
Congress can override a presidential veto.
No act of Congress can be declared unconstitutional by a federal court under its appellate
jurisdiction, except with the concurrence of every member of the court.
7


5
http://www.huffingtonpost.com/2014/04/07/supreme-court-corruption_n_5093485.html
6
http://www.nytimes.com/2014/04/03/us/politics/polls-show-broad-support-for-campaign-spending-caps.html?_r=0
7
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3789&context=californialawreview , CA Law Review, September 1935,
Limiting Judicial Review by Act of Congress, Joseph L. Lewinson.
Sally Hayati, VP Environmental Priorities Network, http://sallyhayati.wordpress.com 3
The constitution does not explicitly state that the judicial branch has the power of judicial review, although delegates
to the Constitutional Convention clearly expected the courts to assert that right. At the time of the Constitutional
Convention and for years after, there was significant public opposition to this anti-democratic feature of the
constitution. Anti-Federalist 78-79 states, There is no power above [the Supreme Court], to control any of their
decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In
short, they are independent of the people, of the legislature, and of every power under heaven. This is the essence of
an aristocracy. As has been noted, A more powerful check upon democratic innovation it would be hard to devise.
8


Since at least 1935, many constitutional scholars have asserted that congress has the constitutional right to limit
judicial review by passing a bill with the same wording shown above.
9
It would require a huge effort to elect a
Congress that would pass such a bill, but passing a constitutional amendment requires an even greater effort. We
should attempt to identify which is the more promising and quicker route.
If we eliminate judicial veto, the legislature will exercise the sovereign responsibility to decide
what laws adhere to the constitution. If such legislative freedom is potentially dangerous, how
much more so is our current state, where a permanent body of un-responsible, unelected judges
has the power to determine the limits of all branches of government, including its own?
Ultimately, regardless of tactics, to oppose the power of big money we need people power of all kinds. We learned
this lesson during the Great Depression. In the 1930s the Supreme Court vetoed 8 key elements of New Deal
legislation, claiming violation of the Commerce Clause of the Constitution (substantive due process doctrine). Some
New Deal supporters proposed passage of a Constitutional amendment to give Congress override power over any
judicial review veto by the Court. Wanting quicker results, FDR advocated that a Congressional bill be passed to
increase the number of judges on the Supreme Court so that he could pack it with liberal judges. But as these options
were debated, suddenly the Supreme Court began upholding several parts of the New Deal, including minimum wage
and the National Labor Relations Act (Wagner act). And then Justice Willis Van Devanter, a conservative, retired from
the court, giving Roosevelt the chance to appoint his own justice.
10,11
No bill or amendment was ever needed or
passed.

Why did the Supreme Court back down? It wasnt because of FDR alone. It was because democratic forces were
militant, organized, and strong enough to force concessions. Hunger Marches of the unemployed, the Veterans Bonus
March, strikes and factory occupations, growing mass industrial unions, farmers marching to demand moratoriums on
farm foreclosures,
12
and radical and populist ideas and organizations everywhere, building organization and
strengthening resistance. Faced with direct threats by the rabble, the Supreme Court and advisors recognized that
FDRs New Deal was a strategic retreat, the lesser of two evils. Organized people can beat organized wealth.

Clearly, no single movement or organization can create this sort of mass ferment out of nothing. But the mass-based
movements and organizations that do exist can begin work on forming a united front or coalition. Environmental,
labor, racial justice, and other social justice movements cannot stand alone against united and organized wealth
interests. Together we have much greater clout and greater potential to grow. The environmental movement in
particular, requiring serious and fundamental system adjustments and working under a short fuse, should lead the
call for unity. Environmentalists have long decried a lack of support from labor unions and workers, and not without
reason. Yet thousands of unions participated in the recent Peoples Climate March in NYC. Its time for
environmentalists to go out in support of labor, to recognize legitimate fears about impacts on jobs from technology
change and environmental regulations, and work with labor to plan strategies that protect peoples ability to earn a
living. A green living. Initiatives such as the Green New Deal hold promise in this regard.
13





8
The Spirit of American Government, J. Allen Smith, Harvard University Press, 1965, p 70.
9
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3789&context=californialawreview , CA Law Review, September 1935,
Limiting Judicial Review by Act of Congress, Joseph L. Lewinson.
10
http://www.npr.org/templates/story/story.php?storyId=125789097
11
http://law.jrank.org/pages/7888/Judicial-Review.html
12
http://www.livinghistoryfarm.org/farminginthe30s/money_11.html
13
http://www.gp.org/GreenNewDeal/
Sally Hayati, VP Environmental Priorities Network, http://sallyhayati.wordpress.com 4
APPENDIX: THE MYTH THAT LABOR UNIONS RIVAL or RESEMBLE CORPORATE POWER

When discussing the harm done by Citizens United, wishing to be fair and balanced, many are careful to always refer
to both corporations and unions as big donors that have excessive political influence. Unions are explicitly called out,
even though the term corporation also encompasses nonprofit corporations like unions. The source of concern,
carefully promoted by corporations and the wealthy elite, is a perception that unions spend amounts that rival or
even exceed that of for-profit corporations and the corporate elite. This is not true.

Data about campaign contributions, such as those provided by the Center for Responsive Politics, can give a mistaken
impression because by law all political contributions from labor unions have to be disclosed, even if it goes towards
indirect campaigning, like with political action committees (PACs). Meanwhile, corporations and the corporate elite,
such as the Koch brothers, secretly contribute hundreds of millions of dollars by setting up Super PACs, creating shell
companies, or providing money to other people to then give to a candidate or a PAC supporting that candidate. The
figure below shows that the top 10 unions together spent less in the 2012 election than the Koch brothers alone.
14

Also note that there are 14.5 million people in the labor movement but only two Koch brothers.


A recent Princeton University study
15
showed that economic elites and organized groups representing business
interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based
interest groups have little or no independent influence. They consider groups ability to shape policy outcomes on
contested issues and to shape the agenda of issues that policy makers consider. They do not take into account the
ability of elites to shape the publics preferences. If they had been able to do so, their estimate of average citizens
influence on policymaking, already near zero, would have been lower.

The Princeton study finds that labor unions tend to favor the same policies as average citizens; their influence tends
to strengthen democracy. Whereas the alignments of the most influential, business oriented groups are negatively
related to the average citizens wishes. The business influence, backed by massive wealth, subverts democracy.
Unions are mass-based interest groups, ever shrinking in size and power, with little or no independent influence on
US government policy. If in doubt, study the recent attempt by the UAW to represent Toyota workers in Chattanooga
TN, the battle to keep collective bargaining in Wisconsin, the unsuccessful attempt to increase the minimum wage, the
inability of fast food workers to assert their right to organize, job export, and treaties like NAFTA and TPP.

The study concludes that the US is in fact an oligarchy and not a democracy: In the United States, our findings
indicate, the majority does not rule. When a majority of citizens disagrees with economic elites they generally
lose. Moreover, because of the strong status quo bias built into the U.S. political system, even when fairly large
majorities of Americans favor policy change, they generally do not get it. Many believe that this has long been true.
Labor unions, for all their weaknesses, are not to blame for this state of affairs. In fact, during the few times in our
history when the majority has asserted more influence, such as during the New Deal, unions and other mass-based
organizations like consumer and unemployed unions were far stronger than now.

Clearly, campaign spending is one of many factors leading to the existence of the American oligarchy.

14
http://www.politicususa.com/2014/03/11/conservative-meme-unions-outspend-koch-brothers-elections-patently-false.html
15
http://www.princeton.edu/~mgilens/Gilens%20homepage%20materials/Gilens%20and%20Page/Gilens%20and%20Page%202014-
Testing%20Theories%203-7-14.pdf