After the $6 Billion Election, Calls for Subpoenas and Amendments

Now that the most expensive election in history is over, an increasing number of Americans are demanding action to reduce the influence of money and corporations in our political system -- and reformers are offering solutions.

Polling shows nine in ten Americans agree there is too much corporate money in politics. The vast majority of Americans believe special interests and campaign donors have the most influence over our elected officials (59 percent believe "special interest groups and lobbyists" have the most influence and 46 percent believe it is campaign donors). Only 15 percent of Americans believe that ordinary people are calling the shots.

Senate Investigation Is Needed

The Center for Media and Democracy, which publishes PRwatch.org, is asking citizens to contact their Senator and demand hearings on the way "dark money" has stealthily influenced the election. At least $400 million, and probably much more than that, was spent by groups organized as "nonprofits" that do not disclose their donors or report many of their electoral expenditures, so little is known about who funds them, who is really calling the shots, and whether or not they are illegally coordinating with candidates.

Materials have been discovered showing that some donors have been promised the power to secretly influence elections, and other investigations thus far have revealed shell games of money transferred among these front groups as well as groups spending hundreds of thousands of dollars on ads but operating out of a UPS drop box with little information about them.

Fifteen years ago, the U.S. Senate investigated the Koch brothers and the "Triad" operation connected to them, along with others using front groups that tried to influence the 1996 elections, even though that spending was on a much smaller scale than today in the aftermath of the U.S. Supreme Court's Citizens United decision and related cases. The problems with secretive election-related spending helped build the case for bipartisan campaign finance reforms. That investigation went forward with Republicans in charge of the Senate and groups like Triad and Americans for Tax Reform (the group led by Grover Norquist of the infamous tax pledge) were subject to investigation, but then-Chairman Fred Thompson (R-TN) did not permit David and Charles Koch to be subpoenaed despite concerns Democrats had about their role behind the scenes. Nevertheless, that in-depth investigation helped build the case for bipartisan campaign finance reforms, some of which were recently struck down by an activist partisan majority on the Supreme Court.

With a Democratic-led Senate, a committee could hold hearings into the dark money spent in this election and help expose information kept hidden about who is bankrolling operations to influence results through non-profit groups like David Koch's Americans for Prosperity, Karl Rove's Crossroads GPS, Ned Ryun's American Majority, the Western Tradition Partnership, Americans for Responsible Leadership, the Small Business Action Committee, and others. Unlike a criminal investigation, the Senate does not need to have evidence of a federal crime but merely needs to exercise its jurisdiction and oversight of the campaign finance process in order to launch an effort to shed light on the dark money operations that have proliferated since the Triad investigation of 1997.

Federal DISCLOSE ACT and IRS Rule Changes Would Bring Light to the Shadows

The lack of public disclosure about such activities is inconsistent with the Supreme Court's assumption that money spent in the wake of its Citizens United decision would be disclosed. And an overwhelming majority of Americans also favor disclosure. At least 85% of Americans across the political spectrum support greater disclosure of outside political spending. One step towards greater disclosure is the DISCLOSE Act, which would require groups spending to influence elections to be transparent about their funding and spending. The Act, proposed by Rep. Chris Van Hollen (D-Md.), has failed in past sessions because of Republican opposition, including from GOP leaders who in the past had supported disclosure in election spending.

Another proposal to limit election spending by "dark money" groups comes from attorney Greg Colvin, who has proposed clarifications to IRS rules that would limit how much nonprofits can spend on electoral activities. If the IRS were to adopt this administrative proposal, it would likely push much of that spending into registered political committees that disclose their funding and spending.

Public Financing of Elections and Matching Funds to Increase Voice of Average Americans

A recent analysis from Demos and U.S. PIRG found that just sixty-one individuals gave $285.2 million to Super PACs in the 2012 elections, contributing the same amount as 1,425,500 small grassroots donors to the major party presidential candidates. Now reformers want to blunt the influence of a tiny number of wealthy donors by putting more small donors into the mix. Organizations like Common Cause, Public Citizen, the Brennan Center, and Democracy 21, are supporting tax credits for small dollar campaign contributions, and matching those contributions with public funds. Legislation has been introduced that would advance those goals.

The Empowering Citizens Act, introduced in September 2012 by Reps. Chris Van Hollen and David Price, would provide a 5-to-1 match on small contributions up to $250, yielding $500 in public funds for a $100 contribution. The Fair Elections Now Act, introduced most recently by Sen. Dick Durbin (D-Ill.), would make it possible for candidates who take no contributions over $100 to run for Congress with a mix of public and private funds.

Long-Term Goal: Amending the Constitution

In the long term, real change will depend on reversing the U.S. Supreme Court's 2010 decision in Citizens United, which lifted limits on corporate political spending, and undoing the "money equals speech" precedent established in the 1976 Buckley v. Valeo decision. Absent an amendment, most legislative fixes cannot touch the heart of the problem or address the growth in corporate power and the influence of some of the wealthiest corporations on our elections and public policies.

Eleven states have now adopted resolutions or referenda to express opposition to these judicial decisions and over 100 cities or towns have called for these reforms in the past few years.

Numerous amendments have been proposed to address various aspects of these problems. Here is a chart created by the Center for Media and Democracy comparing what the proposed amendments would do. A number of groups are spearheading calls to amend the Constitution, including CMD, MovetoAmend, Public Citizen, People for the American Way, Free Speech Is for People, and the Communications Workers of America.  More information is available at www.united4thepeople.org. 

Some have argued that reform is unnecessary because some well-funded GOP Super PACs failed to get a good return on their electoral investments. But former Wisconsin Senator Russ Feingold, now head of Progressives United, warns that "That's kind of like saying, I shot into a crowd of people and nobody got killed."