In the recent election, mysterious candidates surfaced in three Florida Senate district races. I say mysterious because they were not truly running and did not campaign in person at all, instead sending out flyers paid for with untraceable “dark money” from a shadowy PAC.
They were merely talked into running in order to drain votes from Democrats. And it worked. For example, in the District 37 race the GOP candidate received 31 more votes than the Democrat. But the third-party candidate, with the last same name as the Democrat, got + 6,000 (https://www.local10.com/news/local/2020/11/11/evidence-suggests-several-state-senate-candidates-were-plants-funded-by-dark-money/).
Most Americans hate that money buys elections. In fact, according to a 2017 poll, 96% believe that money buys elections (https://www.commoncause.org/democracy-wire/most-americans-believe-system-broken/). And, they are correct.
But many people have never heard of the “Citizens United” Supreme Court (SCOTUS) decision. The two are directly related. Here’s how (for more, see https://www.brennancenter.org/our-work/research-reports/citizens-united-explained).
Citizens United was a 2010 court case brought by a conservative PAC which had been restricted by the FCC from placing negative campaign ads too close to an election. In a narrow 5-4 decision, a sharply divided and politically activist SCOTUS found that outside groups and corporate spending to buy elections cannot be limited.
As he often was, Justice Kennedy was the swing vote. In writing his rationale, Kennedy had a unique interpretation of the constitution, an interpretation that had never been made before. He wrote that in essence corporations are just like people and cannot be denied the “right” to exercise free speech. He and the others in the majority naively assumed that American political life would just go on as usual and that corporate spending would not be used for nefarious purposes… or so they said.
Of course, we now know that ridiculous assumption of voluntarily transparent “independent” spending to be incorrect. I suspect they all knew that assumption to be fallacious at the time but chose a view that fit their conservative politics.
This decision by activist conservative judges unleashed a torrential downpouring of money from the ultra-wealthy and corporations via PACs (Political Action Committees) and super PACs, using dark money. Much of this money has gone to run ads opposing candidates who are advocates for the public and against corporations.
In the off-year 2018 campaign alone (https://www.opensecrets.org/outsidespending), there were 2,395 of these groups. They raised over $1.5 BILLION, with the majority of their spending going to support conservative causes, no surprise.
In the 2020 cycle, with arguably the most despised and partisan President in recent history, fund raising has hit record levels. As opposed to what was initially expected, the Democrats are now out raising the GOP, presumably due to the depth of Democrat dislike for Trump. So far, Biden has raised $700 million and Trump $600 million, a new record. Of this $1.3 billion, about a fourth is “dark money” coming from billionaires and shadowy outside groups.
Public Citizen is a public interest organization dedicated to seeing Citizens United reversed (see www.democracyisforpeople.org). They have been pushing for a Constitutional Amendment in this regard. Currently, their efforts are supported by 47 Senators and 200 Representatives.
However, two thirds of Congress must pass the Amendment, and have it approved by 75% of the States, which means that GOP support will be needed. So far, in view of the right-wing nature of the current party and its leadership, no influential GOP national figures have supported reform. Few GOP dominated states have called for a constitutional amendment. I totally support the efforts of Public Citizen. However, with GOP domination of numerous smaller states I view this approach as a long shot, at least in the short-term.
Since the SCOTUS decision can’t be reversed by Congress, I personally believe that the only sure way to lessen the role of money in US politics is to overturned Citizens United in the courts. This will require expansion of the court to 13 seats if the Democrats win the election. With the divided, weak leadership of the Democratic Party, I think this idea will not be brought to fruition by Democrats, even if they win the Senate.
So, until we have a more progressive Congress and President, what can we do? Public Citizen has a few recommendations worthy of consideration including: 1. public financing of elections; 2. requiring corporate shareholder approval for campaign ads and contributions; and 3. mandating complete, detailed disclosure of all contributors.
Now that Biden has been elected, I am hoping to see a new spirit of bipartisanship emerge next year. When and if that occurs, I urge all Americans to contact your Senators and Representatives, asking them to co-sponsor bi-partisan legislation in order to enact the above three modifications to current election law.
Jack Bernard was formerly SVP of a national healthcare corporation and the first Director of Health Planning for GA. He was Chairman of the Jasper County GA GOP. He's now Vice Chairman of a Board of Health in Fayette County, a suburb of Atlanta.