Setting Reasonable Limits on Campaign Expenditures
In the years since the Supreme Court decided Citizens United, we have seen a massive wave of secret spending in our political system. There was over $100 million in “dark,” unregulated and anonymous, money spent in the 2014 midterm election cycle and, with the presidential race right around the corner, that number is expected to balloon to over $600 million.
While the problem is easy to identify, the solution is far more difficult to achieve. Reluctantly, I have concluded that it is necessary to amend our constitution to address a long line of case law that began before Citizens United and prevents the Congress from meaningfully regulating campaign expenditures.
The amendment I am proposing must not only overturn Citizens United, but also the Arizona Free Enterprise Club v. Bennett decision, which struck down an Arizona law that allowed public financing of a candidate if their opponent exceeded certain spending limits.
The amendment, introduced last week, is simple – it would allow Congress to set reasonable limits on expenditures, and allow states to set up public financing for candidates, if they choose to do so.
I first ran for Congress in 2000, in a campaign that turned out to be the most expensive in U.S. history and helped propel new campaign finance reform.
It was this first-hand experience that convinced me that our elections have become increasingly polluted by ever rising amounts of unregulated outside spending.
Millions of dollars in “soft money” spending that avoided limits because of misguided legal distinctions between contributions to a candidate and independent expenditures in support of a candidate plagued that 2000 race and almost every other major federal race since.
On my very first day in Congress, I cosponsored the McCain-Feingold Bipartisan Campaign Finance Reform Act, which attempted to ban soft money expenditures and allowed for the public financing of campaigns. The bill passed and, for a brief window, the campaign finance system became more transparent and limited.
That was (sadly) short-lived.
With Citizens United, the Supreme Court struck down decades of restrictions on corporate campaign spending and freed companies to spend unlimited funds to run campaign advertisements.
The Court has also allowed wealthy individuals and groups to spend with impunity, with only a theoretical restriction that they do not coordinate with campaigns. However, the reality is that the FEC has dismissed 29 cases in which Super PACs were suspected of illegally coordinating with candidates without even investigating the claims.
Frustrating as it is for a candidate to contend with attacks paid for by Super PACs, or soft money as I was, disclosure laws at least allow us to alert voters to the special interest that is behind them. Candidates being drowned in attacks paid for by dark money don’t have that luxury.
Groups who raise dark money do so by exploiting IRS regulations, designating themselves “social welfare nonprofits” – which allows them to operate tax-exempt and raise unlimited money completely anonymously.
Nothing about funneling millions in secret dollars to support campaigns could be construed to be in the interest of social welfare. Social welfare nonprofits are supposed to limit their political activity, but IRS audits, even of groups that spend vast amounts of their time and budget in support of candidates, are extremely rare. Investigations into complaints of abuse can take years – at which point an election may be long over and the damage already done.
The Supreme Court has overturned decades of legal precedent, the regulatory process is at a standstill, and still we watch billions pour into campaigns, and in increasingly anonymous fashion. And so, sadly, we are left with one option: a constitutional amendment that allows Congress to set reasonable limits on both donations and expenditures and shines the light of day on both.
I hope that this amendment will be part of an ongoing effort to restore confidence in our elections.