Quick Hit Matthew Blake Monday November 12th, 2012, 5:03pm

Despite Ballot Measures, Action Not Expected On Addressing Money In Politics

The financing of political campaigns is one area where the gap between what voter’s want and what the law of the land is appears vast.

In last week’s election, there were referenda in Illinois and across the country calling for nothing less than an amendment to the U.S. Constitution in order to overturn the U.S. Supreme Court’s 2010 Citizens United decision. Yet U.S. Sen. Dick Durbin (D-Illinois) pretty much acknowledged to Crain’s Chicago Business that Congress has no interest in passing campaign finance reform laws.

Durbin, who Crain’s notes is, “arguably the U.S. Senate’s leading proponent of campaign finance reform”, tells the business publication that “there is no appetite for campaign finance reform on the other side of the aisle.” Any law that seeks to regulate money in political campaigns would need Republican support to clear a Senate filibuster.

Uniform GOP opposition to campaign finance regulation was not always so. In 2002, U.S. Sen. John McCain, an Arizona Republican, teamed with former U.S. Sen. Russell Feingold, a Wisconsin Democrat, to pass the bipartisan Campaign Finance Reform Act.

But the Supreme Court eroded much of the 2002 law’s teeth, culminating in Citizens United, when the majority ruled that corporations and unions can spend as much money as they want on political races so long as they do not directly coordinate with the candidates.

The decision let Super Political Action committees and so-called dark money groups, who do not have to disclose their donors, spend millions on this year’s presidential and congressional campaigns, bombarding the airwaves with negative advertising.

Citizens United's visible consequences may have had an impression on voters.

In the ten different Illinois townships where the referendum made the ballot, voters decisively backed a constitutional amendment. Seventy five percent of voters backed the measure in Chicago, 85 percent in Oak Park, and 68 percent in Carbondale. The lowest level of support was in Lisle Township where “only” 62 percent of voters supported constitutionally overturning Citizens United.

“The outcome was phenomenal,” says Steve Alesch, a Warrenville resident, who organized to place the referendum on the ballot.

Skeptics could chalk up such overwhelming support in Illinois, and also towns in Massachusetts and a referendum in San Francisco, to a disproportionate share of progressive, blue state voters.

But statewide initiatives in red state Montana and swing state Colorado picked up more than 70 percent of voter support.

On those referenda, voters were asked whether the state legislature should support a constitutional amendment to overturn Citizens United. Alesch says that the next step for the Illinois Move to Amend campaign is the Prairie State’s own statewide initiative.

But it is unclear what the next step is after that one.

The threshold for actually amending the constitution is, of course, very high: the approval of 3/4 of all state legislatures, 2/3 of the U.S. Senate, and 2/3 of the U.S. House.

What the referenda has perhaps accomplished is showing that, as one Salon headline put it, “Everyone Hates Citizens United.” But, beyond that, Durbin tells Crain’s that only a major scandal will galvanize bipartisan federal action in response to this public discontent. McCain, who years ago abandoned his campaign finance reform advocacy, said the same to The Hill newspaper this summer.

Some campaign finance reform watchdogs wonder about focusing on the constitutional amendment.

David Morrison, deputy director at the Illinois Campaign for Political Reform, says that he is “pleasantly surprised” by how the referenda fared. “But the constitutional amendment is a long-term goal and a solution that won’t happen for years,” Morrison says.

“It is pretty clear that the Supreme Court will strike down anything short of an amendment,” adds Alesch.

But Morrison has a couple of proposals that might pass constitutional muster. One is a statewide law that would enforce the wall between candidates and Super PACs. For example, the state could investigate to make sure that a Super PAC pouring millions into a campaign on behalf of one candidate did not directly coordinate with that candidate.

Another is the Disclose Act, sponsored by Rhode Island Democratic U.S. Sen. Sheldon Whitehouse to make dark money groups disclose their donors. But Whitehouse is so far stymied by the absence of GOP support, including a lack of backing from McCain.

Image: Michael Branson Smith/CC BY 2.0

Comments

I am the Executive Director of Common Cause Illinois, the organization that staffed and organized the coalition that put the advisory question in Chicago. Members of our coalition, including MoveOn, Move to Amend, Public Citizen, and Illinois PIRG, were all involved in asking Alderman Joe Moore to introduce a city council resolution. Most were also involved in putting the question to the voters. Some members of the coalition were also responsible for the other towns in Illinois having similar questions on their ballots.

I believe that the article, though well-intentioned, is missing some key points.

First, there is no perspective from anyone that actually worked on the Chicago measure. The watchdog group cited, ICPR, with whom Common Cause has good relationship with, doesn’t work on Citizens United measures and had no role in the national discussion. Steve Alesch is part of Move to Amend, but was not directly involved in the Chicago resolution nor the ballot question. Chicago, as the third largest city in the country, played an important part in pushing the national and statewide conversation forward.

Second, the movement to amend the constitution is largely about educating the public and getting the nation to put pressure on congress to address the Supreme Court’s evisceration of campaign finance laws, many of which were spearheaded by Common Cause over several decades. The best takeaway from the amendment victories is not, despite Senator Durbin’s assessment, that “everyone hates citizens united.” The takeaway is that there are coalitions forming and organizing to get the amendment on the agenda. The last major amendment movement in this country was for the Equal Rights Amendment. It did not pass. But over the 8-9 years that it was on the agenda and was discussed, that movement helped to fundamentally change the national dialogue with respect to women’s rights and pressured governments and corporations to institute local policies that enshrined women’s rights. The takeaway was not “everyone hates sexism.” That groups such as Common Cause, Public Citizen, MoveOn, Move to Amend, and PIRG which collectively represent millions of voters across the country are uniting around this issue is the real news that was not touched upon.

Third, Mr. Morrison’s idea that the state could investigate coordination among Super PACs and candidates, while theoretically interesting, just would not happen in reality for several reasons. First, a broke Illinois is extremely unlikely to dedicate scarce resources to such an endeavor. In addition, Speaker Madigan who is no fan of contribution limits is unlikely to put pressure on people such as Lisa Madigan to conduct such investigations. Also, Barbara Flynn-Curry who just recently became the spokesperson for removing contribution limits in races where Super PACs are involved is unlikely to put pressure on anyone to conduct investigations either. When it comes to money in politics, neither the Democratic Party nor the Republican Party are likely to make a move to investigate these independent expenditure groups. It’s not in their self-interest. More importantly, as Super PACs are often run by close friends, family, and former staffers of campaigns, how would investigations turn up anything around coordination even if they were conducted? The constitutional muster that is referred to in this article becomes more complicated in reality. In reality, coordination is secret or indirect, without much of a paper trail. All someone has to do is say publicly: “I can’t coordinate with these Super PACs , but if I could here’s what I would do…” In fact, that is exactly what Newt Gingrich did during the primaries. That is perfectly legal. One more point, if a Super PAC is headed by a family member, good luck getting an investigation that passes constitutional muster to reveal any coordination. These conversations are likely happening at the dinner table or in bed and not through the official channels.

Fourth, the other suggestion regarding the Disclose Act, which incidentally Common Cause had a lobbying role on the Hill in favor of its introduction, is only a tool that allows the public to follow the money. As your article mentions, the Disclose Act, was filibustered by Republicans and it will be filibustered again. Again, in theory, it sounds like a great remedy, but even those of us that worked hard to get the Act introduced understand that there is little chance of it getting passed, especially after the recent election where the status quo is roughly the same as it was prior to the election, save a few democratic pickups. Again, while we have been strong advocates of disclosure, we don’t believe it gets at the deepest problem of money in politics which is the distraction that our elected officials are boxed into as they try to please their donors whether they be associated with traditional PACs or Super PACs. Professor Lessig in his book, Republic Lost, makes a strong case that the dependency of elected officials on their donors corrupts their agenda fundamentally. Knowing who the donors are doesn’t help sufficiently. Citizens United actually adopts the reasoning outlined at the end of your article, but again we find disclosure necessary but not sufficient. That’s is why we disagree with the Supreme Court’s ruling. If the problem were just a matter of disclosure, then Citizens United would not be problematic.

Finally, There are other cases besides Citizens United that have had a tremendous, negative impact on the money in politics problem. Some have eviscerated the public financing systems in states such as Arizona ( see, e.g., ARIZONA FREE ENTERPRISE CLUB’S FREEDOM CLUB PAC ET AL. v. BENNETT, SECRETARY OFSTATE OF ARIZONA, ET AL.). Others that predate Citizens United have enshrined the doctrine of corporate personhood which is a constitutional interpretation that can only be changed if the Supremes overrule it or through an amendment. Some of the members of our coalition believe that an amendment is more winnable than waiting around for 5 Supreme Court justices to change their minds.

We commend Mr. Blake and Progress Illinois for taking up this issue. This long-winded reply is offered only to help fill in some of the gaps in the article with regard to the movement to amend.

Here is additional background from Common Cause regarding both Citizens United and the Disclose Act here http://amend2012.org/ and here http://www.huffingtonpost.com/rev-bob-edgar/the-disclose-act_b_1672806.html

Thank you for your hard work and for considering these comments.
Rey

REY LÓPEZ-CALDERÓN, J.D. | Executive Director, Illinois
T: @reylc
E: reylc@commoncause.org

Common Cause is a nonpartisan, nonprofit advocacy organization founded in 1970 by John Gardner as a vehicle for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest.

Today, Common Cause is one of the most active, effective, and respected nonprofit organizations working for political change in America. Common Cause strives to strengthen our democracy by empowering our members, supporters and the general public to take action on critical policy issues.

Now with nearly 400,000 members and supporters and 35 state organizations, Common Cause remains committed to honest, open and accountable government, as well as encouraging citizen participation in democracy.

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