It’s been colloquially called the blue wave, the suburban tsunami and the “Trump thump,” but there is one nickname for the 2018 midterms that we liberals normally shy away from: the most expensive midterm elections ever. Why? It’s not because more women than ever contributed to campaigns, propelling Democrats to raise $2.93 billion. Perhaps it is because the top 10 mega-donors made up 8.5 percent of this money or possibly because the dark money organizations and political action committees — that Sen. Bernie Sanders, I-Vt., and Sen. Elizabeth Warren, D-Mass., vilify — made up 13.63 percent of this spending. See, progressives have railed against this system as working in favor of the millionaires and the billionaires who are buying off their Republican friends. Simultaneously, Republicans, ranging from John McCain to President Donald Trump, argued the same about the coastal elites. If politicians’ rhetoric is so intense and virtually everyone dislikes the system, then why is the campaign finance system still flooded with money from the millionaires, the billionaires and the corporations? To answer that question, we must take a trip across the national mall to Democrats’ favorite punching bag: the Supreme Court.
On January 21, 2010, Justice Anthony Kennedy handed down the landmark Supreme Court decision in Citizens United v. FEC. Basically, Citizens United, a 501(c)4 dark money organization, decided to release a movie called “Hillary: The Movie” which defamed former Sen. Hillary Clinton and advocated against her election in the Democratic primary. The Federal Election Commission, in accordance with the McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002 (BCRA), fined Citizens United and halted the release of the movie, prompting Citizens United to file suit. This decision split the Court (5-4) on ideological lines, and the conservative majority ruled that Citizens United should have been allowed to release the movie because the ban on corporate spending — through SuperPACs, 501(c)4 and 527 organizations — on advocacy films and other electioneering communications is unconstitutional, as corporations have the right to free speech. However, corporations still are not allowed to donate directly to campaigns or political parties.
While this decision is touted by opponents as the result of judges being politicians in robes, it is, in fact, the result of years of precedent that function like increasingly loud notes building up to this decision’s crescendo. In the 1976 Buckley v. Valeo decision, the Court affirmed that non-donation campaign expenditures — like advocacy films, for example — are constitutionally protected free speech. Then, in the 5-4 McConnell v. FEC decision of 2003, the Court narrowly affirmed that limits on corporations’ independent expenditures were necessary to prevent corruption or the appearance of corruption.
However, the Court did reaffirm that corporations had the legal right to free speech. In fact, this right to corporate “personhood” has been legal precedent since the 1800s in Dartmouth College v. Woodward and has been affirmed as recently as 2014 in Burwell v. Hobby Lobby — a decision that extends this principle to a truly absurd standard that forces into question the mental faculties of Samuel Alito. Therefore, when Citizens United stated that a corporation’s right to free speech cannot be abridged by the government, legal scholars, unlike the political universe, were largely unsurprised. While the usual main takeaway from Citizens United is that corporations can spend unlimited sums on electioneering communications, Justice Kennedy included a key — but frequently overlooked — provision: The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.
Enter Sen. Mitch McConnell, R-Ky. You may recognize the name from the McConnell v. FEC decision of 2003, his day job as Senate Majority Leader or his night job as the Grim Reaper. He is the most powerful United States senator and has been the most outspoken advocate for unlimited sums of money in our elections. Why? Well, when McConnell was a political science professor in the 1970s, his greatest lesson was in saying, “The three things you need to succeed in politics and to build a political party: money, money, money.” This belief followed him to the Senate where McConnell has collected millions of dollars in speaking fees, personal gifts and campaign contributions from his “special friends” at R.J. Reynolds Tobacco Company.
Then, inconspicuously, the senator filibustered several tobacco regulation bills and cast doubt on the negative health effects of secondhand smoke. This trend set McConnell on a direct collision course with another prominent Republican figure: the late Sen. John McCain, R-Ariz. The two warred over campaign finance reform for years with McCain partnering with Democrat Russ Feingold to create the McCain-Feingold BCRA in 2001. After introducing the bill several times and having it filibustered time and again by McConnell, the pair finally passed the bill with the bare minimum 60 votes in 2002. However, McConnell, ever the snapping tortoise, sued the Federal Election Commission based on constitutional grounds.
This case became McConnell v. FEC, the decision that paved the way for Citizens United. Though McConnell believed the 2010 decision was “terrific,” it led to disastrous results for Republicans in the 2018 midterm elections, which introduced Majority Leader Mitch McConnell to an equally savvy and powerful political force: Speaker Nancy Pelosi. From impeachment to lowering prescription drug costs, McConnell has been one of the most frequent critics of Speaker Pelosi’s new democratic majority.
However, one bill, in particular, gets under the turtle’s shell: For the People Act (HR1). This bill, passed by House Democrats on March 8, 2019, lays out several campaign finance reforms that boost the influence of the middle and lower classes and introduce more transparency into our elections. The major provisions include a six to one matching program for campaign donations under $200. These donations made up 16.73 percent of all money spent in 2018, so this public financing system would reshape the landscape of campaign spending by increasing the influence of the under-valued. Further, in keeping with Justice Kennedy’s implicit recommendation, the bill would force SuperPACs, 527 and 501(c)4 dark money organizations to disclose all donors above $10,000. This is the kind of campaign finance reform for which there is no legal dispute, but there is a political dispute from folks like McConnell.
He dubbed the bill the “Democrat Politician Protection Act,” and called it offensive to average voters. Maybe McConnell has been speaking too much to his wealthy donors but most average voters would welcome the opportunity to have their political speech amplified by the federal government. This exposes a political belief underlying many conservatives’ legal support for Citizens United. Many of these conservatives believe that, since Republicans are the party of low taxes and limited corporate regulations, increased corporate influence in our elections will inherently assist Republicans. However, they largely oppose reforms that empower people from lower classes or increase transparency in the electoral system because they fear their relative unpopularity among the bottom 80 percent will hurt them more. This is not limited to campaign finance. The phenomenon also extends to criminal enfranchisement, gerrymandering reform and voter registration. Thus, in order to keep power, Republicans, with McConnell as their figurehead, wish to limit democracy in order to stay in power, and liberals should be fighting against him instead of futilely arguing for the repeal of Citizens United.
In 2011, Sen. Sanders said “History will record that the Supreme Court’s Citizens United decision is one of the worst decisions ever made by the Supreme Court.” This is a strong statement when speaking about the legal body responsible for the “separate but equal” doctrine and upholding the Japanese internment camps. While I believe the Court’s decision makes logical sense in accordance with legal precedent, Sanders might be correct in the end. McConnell might win out and allow our democracy to be bought and sold by the top 1 percent.
However, the decision’s legacy hinges on Congress’s actions going forward. If they enact legislation that casts light on dark money organizations or allows for matching programs on small-dollar donations, then Citizens United will one day be praised for starting a national conversation about campaign finance reform. However, if progressives keep vilifying the decision and McConnell continues his stonewalling, then Citizens United will be consigned to the fate that Sanders laid out for it. For democracy’s sake, I hope we choose the correct path.
Keith Johnstone can be reached at keithja@umich.edu.