It’s been four years since the Supreme Court’s controversial Citizens United ruling, the case that set the stage for unlimited and often undisclosed contribution money in federal elections. This year, the superPACs and social welfare organizations that use that money for attack ads are already at it, even as Republicans and Democrats are still choosing their candidates for the fall campaigns.
Advocates of stronger campaign finance laws are 0-for-6 at the Supreme Court under Chief Justice John Roberts. And there’s no consensus in Congress on what, if anything, should be done. But critics of Citizens United, including newly enlisted philanthropists, are organizing a long campaign of their own to reduce the political influence of big money.
One of those philanthropists is Phil Radford, co-founder of the Democracy Initiative. Radford says polls show rising anger as Americans see money’s influence in Washington.
“I think that outrage will translate into people, district by district, asking their members of Congress: What are they doing to make sure America is a democracy again?” he says.
The Democracy Initiative is a consortium led by Greenpeace USA — where Radford is executive director — the Communications Workers of America, the NAACP and the Sierra Club. It’s active on voter rights, and it runs Fix the Senate Now, a campaign that has already helped to lower parliamentary roadblocks in the Senate.
But even efforts to control money take money.
“This fight has been chronically underfunded for way too many years,” says Nick Penniman. He’s the director of Fund for the Republic, a tax-exempt group working to recruit more philanthropists to the cause.
“Unless we can increase the number of philanthropists donating to the fight for reform, we’re not going to be able to ever have the financial power that we need to create a real surge,” he says.
His goal: $40 million, which the Fund would then distribute in grants. It’s no small sum. Penniman calls it ironic but necessary.
David Keating, on the other side of the debate, calls it futile. Keating is president of the Center for Competitive Politics, which advocates for fewer limits and no new disclosure requirements.
He says polls over time show that Americans are leery of politicians who want to regulate political speech, including political money. He also says the Citizens United ruling seems to benefit liberals and conservatives alike.
“I think more people are getting used to the new system — the new freedoms that we have from recent Supreme Court decisions,” he says.
But Wendy Weiser, head of the Democracy Program at the Brennan Center for Justice in New York, is looking at different poll numbers. She says Citizens United and other recent decisions get little public support.
“When there’s such a wide gap between public perceptions of constitutional values and the court’s decision-making, those decisions are ultimately not sustainable,” she says.
Meanwhile, lawyers against Citizens United are working up new legal theories. One target is a section of the Citizens United ruling that shrank the legal concept of political corruption.
Essentially, Citizens United says money only corrupts politicians who do favors for donors in return for contributions. Zephyr Teachout at Fordham University Law School says that’s radically different from the Founding Fathers’ view of corruption. They discussed it a lot, she says, but in terms of corrupting the institution and the system, not the individual lawmakers.
“The Founding Fathers didn’t even talk about criminal bribery or criminal law as a way to protect against corruption,” Teachout says. “What they were concerned about is all the ways in which money and power could influence people, representatives in particular, to be unfaithful to their constituents.”
Keating, not surprisingly, doesn’t buy it: “I think if the Founders looked at the types of remedies being proposed by people who support these, I think, basically crackpot legal theories, they would laugh.”
But that theory about the Founding Fathers is just one of many under development, perhaps coming soon to federal courthouses around the country.