What Democracy Lost in 2012
Last November 7, a syndicated cartoon made the rounds in progressive circles. Drawn by Signe Wilkinson, it showed a battered, bruised, patched-up Uncle Sam defiantly flexing his biceps and flashing the dazed grin of a fighter who’d survived a vicious knockdown and prevailed in 15 rounds. The caption, “Democracy Wins,” became a popular meme amid the liberal euphoria that broke out on election night. President Barack Obama had been re-elected, Karl Rove had been embarrassed on national television, and the Sheldon Adelsons and National Rifle Associations of the world had thrown hundreds of millions of dollars down the toilet. Voter suppression had not kept blacks and Latinos from the polls. Citizens United had not done its worst. Democracy had been tried and tested, and emerged banged up but miraculously intact.
Liberals had earned their moment of giddiness. But the assumption that “democracy won” because Obama won and Democrats carried the U.S. Senate is flat wrong. Dangerously wrong. Democracy, already in a weakened state, suffered serious defeats in 2012. The battle to win it back will be long, fierce, and uphill.
Contrary to popular wisdom, money did influence elections in 2012. More than $2 billion was spent on the presidential race alone—one-third of the unprecedented spending spree of $6 billion that was fueled by the rise of super PACs and nonprofit “dark money” groups. (The latter are “social welfare” 501(c)(4) organizations that don’t have to disclose their donors, so long as they spend less than half of their funds on politicking.) At the top of the ticket, both sides’ massive piles of cash arguably canceled each other out—if neither had spent a dime, Obama probably would have beaten Mitt Romney by a similar margin. But there’s no question that the nature of the presidential campaign was transformed by outside spending: In 2008, just 9 percent of early ads were negative; last year, more than 70 percent were attacks.
Big money’s biggest effect was felt in “down ticket” races—for the U.S. House, for state supreme courts, for state legislatures. While more Americans voted for Democrats than Republicans in House races overall, the GOP scored its second-largest majority in 60 years. Many of those victories were made possible by gerrymandering, but money was clearly a factor: House Republicans outraised their Democratic counterparts by a sizable margin, and far more dark money was behind conservative candidates. The same was true in state races, where large infusions of cash can overwhelm the opposition, and where Republicans also spent considerably more. After the votes were tallied, Republicans controlled 28 state houses, 30 state senates, and 30 governorships. Although conservative groups’ attempts to purchase control of state supreme courts failed in some cases, they worked wonders in others. In North Carolina, one outside group alone threw $1.9 million behind conservative judge Paul Newby, whose narrow victory over Judge Sam Ervin—grandson of the Democratic senator who led the Watergate committee—gave conservatives a 4-3 majority on the court.
“From a surprising number of quarters we now hear musings that the super PACs and dark money had little impact,” said Michael Copps, a former commissioner for the Federal Communications Commission (FCC) who now works for the public-interest group Common Cause, at a post-election forum in Washington. “That’s just plain wrong. Sure, Obama was re-elected. But do we really think that all those hundreds of millions of special-interest dollars didn’t matter? Or that suddenly billionaires have learned their lesson and will cease and desist from trying to buy elections?”
The winners in both parties emerged from the campaign more indebted than ever to the financial elite who bankrolled their efforts. “They’re raising money not from all of us but from the tiniest fraction of the 1 percent of us,” says Lawrence Lessig, the Harvard law professor who’s become one of the nation’s leading advocates for campaign-finance reform. “It’s 0.05 percent—one-twentieth of 1 percent of Americans who are the relevant funders of these campaigns. The fact that Democrats won doesn’t show that those funders had no influence. The fact that Democrats won shows that the funders of the Democrats had an influence.”
Both parties share the blame for this sorry state of affairs. It was Obama, let’s not forget, who opted out of public financing during his first presidential campaign, leading to skyrocketing spending by political committees. In the 1990s, the Democrats’ return to national power under Bill Clinton was backed by Wall Street money, which the party sought aggressively for the first time. If a super PAC had any decisive impact on the presidential race in 2012, it was the pro-Obama Priorities USA, which raised $79 million: The group’s early attack ads on Romney painted an indelible picture for many swing voters of a rapacious 1-percenter who loves nothing more than firing people for the sake of profit.
The most pernicious effects of the 2012 spending frenzy will be the unseen ones: the constant threat that lawmakers, both in Washington and in the state capitols, face when they vote on issues dear to the hearts of billionaires, powerful corporations, and cash-drenched “issue groups” like Grover Norquist’s Americans for Tax Reform. Their voices have been amplified as never before—a fact encapsulated in one eye-popping number calculated by the Public Interest Research Group (PIRG) and De¯mos. In 2012, it took just 32 wealthy individuals to match the combined donations of 3.7 million Americans who gave $200 or less to Obama and Romney.
Meanwhile, the election was anything but a “small-d” democratic triumph. It’s true that Republican attempts to suppress minority votes and those of young people—by shortening early-voting hours, restricting voter registration, and requiring photo ID at the polls—were largely mitigated by successful lawsuits from voting-rights groups and the Obama campaign. The targeted voters turned out in encouraging numbers—African Americans increased their record turnout from 2008, Latino turnout rose from 9 percent to 10 percent of the electorate, and those under 30 made up 19 percent of all voters, up from 18 percent four years ago. But overall turnout was down—not just from the historic high of 2008 but from 2004 as well. Only 59 percent of eligible voters used their franchise. In all, more than 90 million Americans who could have voted didn’t bother.
Yes, voter-ID laws made less impact than feared. But an electoral disaster was barely averted. If the presidential race had come down to one tightly contested state—Ohio, Colorado, Florida—it would almost surely not have been decided until well into 2013. The nightmare this time—next time—wouldn’t have been about hanging chads. It would, most likely, have involved malfunctioning voting machines or provisional ballots—those cast by voters who show up at the polls but don’t show up on their precinct’s registration rolls. In Ohio, more than 200,000 provisionals were cast. If the election had hinged on those votes, planeloads of lawyers from both parties—who were on standby to fly to Cleveland on election night—would have been scratching and clawing over every ballot. Social media, right and left, would have buzzed with rumors and innuendo. The Republican secretary of state, John Husted, would have become the new Katherine Harris. There would have been an endless stream of lawsuits and questionable rulings.
No matter the winner, such a debacle would have undermined faith in democracy and exacerbated partisan rancor in a way that not even Florida 2000 did. Every election carries the potential for a breakdown, because America is unique among all advanced democracies in letting every state—and in some cases, every county in the state—make its own rules about who can vote, how they register, and what votes are counted. Those rules are shaped and enforced, almost everywhere, by elected officials with every incentive—and under great pressure—to tilt the playing field in favor of their party.
“The big error,” says Richard Hasen, a law professor at the University of California, Irvine, and the author of The Voting Wars: From Florida 2000 to the Next Election Meltdown, “is that people see we didn’t have a meltdown, and they assume the system worked. We didn’t have a meltdown because it wasn’t close enough.”
In 2012, many of the fiercest fights in battleground states were not over whom to vote for but over voting itself. In Ohio, Republican lawmakers and the secretary of state tried to cut back on early voting—which was introduced in response to the suppression of black voters in 2004—only to be thwarted by the courts. In Pennsylvania, the Republican house majority leader bragged that a new, strict voter-ID law, which threatened to disenfranchise hundreds of thousands of African Americans, was “gonna allow Governor Romney to win the state of Pennsylvania.” That scheme, too, was ultimately stopped by the courts, as were strict photo-ID laws passed in Wisconsin and Florida. In Colorado, Iowa, and Florida, Republican election officials circulated lists of voters suspected to be unqualified for one reason or another; Florida’s attempted purge targeted 180,000 voters, 61 percent of them Latino and 14 percent African American. A combination of angry citizens and successful lawsuits repelled those efforts, but not before thousands received letters questioning their eligibility to vote. Florida Republicans also passed a law that required voter-registration groups to submit forms within 48 hours of their being filled out or face potential $1,000 fines; the League of Women Voters, among others, was forced to abandon its registration drive.
That was before Election Day. On November 6, in Pennsylvania, poll workers confused about the ever-changing rules and endless court fights turned away voters because they thought state-issued photo IDs were required. One county posted signs outside of all polling places warning that photo ID was a must. In Florida, where early voting had been shortened from 14 days to 8, lines were so long that some voters waited up to 7 hours. Some were still queued up to vote in Miami-Dade as Mitt Romney was conceding the election. Shortly afterward, President Obama ad-libbed during his victory speech, “We have to fix that.” Perhaps he already suspected what a post-election survey would find: Those who waited more than a half hour to vote, nationwide, were almost twice as likely to be Obama voters. While 22 percent of African Americans and 24 percent of Latinos reported lengthy waits at the polls, only 9 percent of whites said the same.
The troubles had only begun. One week after Election Day, Arizona still had some 324,000 votes uncounted, most of them cast by first-time Latino voters. Four weeks after the election, Ohio announced that Obama’s lead in the state had suddenly grown from 100,000 to 166,000. In all, 17 states were still counting provisional and absentee votes in the second week of December.
Welcome to the world’s leading democracy.
American history is rife with attempts to suppress votes—by both parties. “Sometimes we have this notion that if someone’s engaging in suppression, it’s like calling them the worst Klan racist,” says Spencer Overton, a law professor at George Washington University, a former Justice Department official, and the author of Stealing Democracy: The New Politics of Voter Suppression. “In reality, if you look at history, a lot of the suppression has simply been motivated by politicians who wanted a particular electorate. Politicians see it as another form of gerrymandering.” In the late-19th century, for instance, Northern Republicans found ways to keep Irish and German immigrants, who were heavily Democratic, from voting—while Democrats in the South were preventing black Republicans from voting, often violently.
In 2012, it was impossible to disentangle voter suppression from race. Republicans might have been primarily motivated by the age-old temptation to shape the electorate to their liking. But the voters they wanted to filter out were overwhelmingly black and Latino. The effort began as a backlash to Obama’s victory in 2008, when he was lifted by record turnout among minorities and young voters. When Tea Party Republicans swept into power in 26 states in the 2010 midterms, voting restrictions suddenly became an urgent legislative priority.
This was nowhere more obvious than in North Carolina, which gave Obama one of his most unexpected victories in 2008. For a decade, a broad coalition of progressive groups led by Democracy North Carolina had successfully lobbied for liberalized voting laws that transformed the former Confederate state into a national model for increasing voter turnout. The initial resistance to these reforms came from Democrats, says Democracy North Carolina’s executive director, Bob Hall. “They were in control of everything then and not sympathetic to changing the structure. They didn’t particularly want to add more voters—they just wanted to know who they were and get 50 percent plus one.” But with support from reform-minded Democrats and moderate Republicans, the state first created early voting, then gradually expanded it—more days, more polling places—until a majority of North Carolinians were voting early by 2008, shortening lines at the polls. Lawmakers also passed same-day registration for the early-voting period, so that folks could show up, register, and vote in one swoop. Same-day registration had a side benefit, too: “It wound up cutting down on the use of provisional ballots,” Hall says, “because people could just register and vote rather than have to fill out a form and election people having to research their status. They could just sign ’em up.” It sounds like common sense, but fewer than a dozen states let folks register during early voting or on Election Day. Only a couple have North Carolina’s “pre-registration” program for 16- and 17-year-olds: High schools hold registration drives, in lunchrooms and at football games, so that students become automatically eligible to vote when they turn 18.
By making it easier to register and to vote, North Carolina saw turnout soar—from 59 percent in 2000 to 70 percent in 2008. But Republicans had some concerns about the makeup of those new voters. In 2010, the GOP captured both chambers of the state legislature for the first time since Reconstruction. A local billionaire businessman named Art Pope, who serves on the board of the Koch brothers’ Tea Party group Americans for Prosperity, poured about $2.2 million (counting family donations and those from groups he backs) into unseating Democrats. Pope is also the major funder for several of the state’s conservative think tanks, and voter ID was one of his idées fixes. It soon moved to the top of the legislative agenda as well. Republicans passed a strict photo-ID law, only to have it vetoed by Governor Beverly Perdue, a Democrat. Attempts to roll back early voting were also high on the agenda, but Republicans couldn’t agree on how to do it.
That will change in 2013. While Obama only narrowly lost North Carolina in November, Republicans ratcheted up their edge in the state legislature, winning supermajorities in both the assembly and senate. Pope helped elect the state’s first Republican governor in 28 years, former Charlotte Mayor Pat McCrory. (In December, McCrory expressed his gratitude by appointing Pope to his cabinet and putting him in charge of the state budget.) Voter ID, in some form, is now sure to pass. The day after the election, Republican lawmakers were guaranteeing it. They plan to roll back some of the state’s liberal voting laws as well.
All of which puts Democracy North Carolina and its allies in the same position as voting-rights advocates in so many other states: After years of working to make voting easier and fairer, they’re now forced to fend off efforts to make it harder. “If this isn’t partisan, what is it?” Hall asks. “If this isn’t voter suppression, what is it? It’s a polarizing issue for the base of the right wing that is freaking out about losing control of white culture and white dominance. But it’s also a motivating, energizing fight for African Americans and Latino voters in North Carolina. African Americans in both 2008 and 2012 have voted at higher rates than ever in modern history. You have to go back to Reconstruction to find higher rates. So they understand what this is: It is going back to Jim Crow all over again.”
The national push for voter ID was fueled by powerful right-wing forces. The American Legislative Exchange Council, which brings together conservative lawmakers and big corporate interests, drafted a “model” voter-ID law in 2009—one that some state legislators would adopt almost verbatim. At the same time, conservative politicians, pundits, and radio shouters were spreading the word about rampant “voter fraud,” despite studies finding it virtually nonexistent. The “election truthers,” as Richard Hasen calls them, have been stunningly successful. One-fourth of all Americans now believe that voter fraud is “very common.” Post-election polling in 2012 found that a majority of self-identified Republicans believed that ACORN, the anti-poverty and voter-registration group, had stolen the election for President Obama. The only problem with that theory: ACORN no longer exists.
“I don’t impugn the motives of all the people who point to election integrity,” Hasen says. “There are enough political operatives out there who have made many Republicans honestly believe that election integrity is a major problem. There’s been a cynical manipulation on the right to get that message across.”
After 2010, ID bills were suddenly everywhere: More than 65 were introduced in 34 states in 2011 and 2012. Eleven states passed strict photo-ID laws (which let voters use only a few forms of state-issued ID). Thanks to lawsuits and Department of Justice action, only four were in effect on November 6. But others will be activated in 2014—and by then, voter ID will undoubtedly have passed in more states, North Carolina among them.
The fact that voter ID didn’t turn the election in 2012 doesn’t mean that it won’t in the future. Last year, the Obama campaign had to fight back against voter-suppression efforts; it could not win without minority turnout at least as high as in 2008. “The Obama campaign had incentives and resources to overcome those barriers,” says Spencer Overton. “In election cycles going forward, you’re not necessarily going to have candidates who have that.”
Perhaps most worrisome of all for those concerned with voting rights: This year the Supreme Court is expected by many legal experts to overturn Section 5 of the Voting Rights Act. The provision requires nine states and parts of 17 others with persistent histories of voting discrimination to “preclear” any changes to election laws with the Department of Justice. Such a ruling would open the way for harsher ID laws and even more discriminatory electioneering. Voters facing discrimination could still sue their states, of course, but as Overton points out, “minorities in a small town in Alabama probably won’t have the resources to bring a lawsuit to stop the moving of a polling place from an acceptable public school to an exclusionary, all-white club.”
It wasn’t supposed to be like this—not after the lessons absorbed during the long, distressing wait for a new president in 2000. Until that year’s crack-up in Florida, most Americans were blissfully ignorant of the depths of our electoral dysfunction. After Bush v. Gore, it became clear that antiquated voting methods—the source of those hanging chads—were making it impossible for every vote to count. It became obvious—in the form of Katherine Harris, the Florida secretary of state and state chair of the Bush-Cheney campaign—that having partisan election administrators created the potential for serious hanky-panky. Stolen elections had seemed like a thing of the past, a relic of LBJ’s Texas and Boss Daley’s Chicago. Now we knew that elections could still be fixed.
For the first time in decades, elections became a political issue in themselves. Congress was compelled to act. But what it came up with was weak as water: The Help America Vote Act, passed in 2002 after ferocious arguments about states’ rights to run elections—and after intense lobbying by state and local election officials jealous of their power. HAVA established minimum standards for voting machines. It freed up money to help states upgrade their equipment. It created the Election Assistance Commission, a national panel that studied and shared “best practices” with the states. But it failed to create a uniform national registration system—one result being that between two million and three million voters were turned away in 2008 because of registration problems. It did nothing to professionalize election administration, to take partisanship out of the process, or to standardize rules on when former felons can vote.
The closest that HAVA came to establishing federal rules was a requirement that the states allow people to cast provisional votes if there’s a problem with their registration. That seemed like a progressive idea at the time, says Tova Wang, author of The Politics of Voting Suppression and a senior fellow at De¯mos, because “no one would be turned away from the polls anymore—everyone could cast a ballot.” But there was a hitch, born of Congress’s reluctance to impose national standards: “It was left to the states whether those ballots would be counted or not, so you ended up with all these states that just threw them away,” Wang says. “So that was a twisted ending for that provision of the law.” In 2008, according to the Caltech–MIT Voting Project, more than one-third of all provisional ballots went uncounted.
That wasn’t the only twisted outcome. HAVA also spawned voter ID. “It was a big fight in 2001 and 2002 whether to include a voter-ID requirement in HAVA,” Wang says. “Congress ended up with this very limited voter-ID requirement”—voters had to show some proof of address, even if only a utility bill—“but that helped to open the floodgates. The irony is that the issue of voter fraud and the issue of impersonation at the polls was nowhere in the 2000 election; that just simply wasn’t one of the problems.” But a few key Republican senators, pioneering “election truthers” such as Missouri’s Kit Bond, threatened to hold up HAVA without some kind of ID requirement. Two Democrats, Senators Hillary Clinton and Chuck Schumer of New York, recognized the dangerous precedent it might set and voted against the bill. But voter fraud was now on the conservative radar.
Hasen believes that Florida 2000 had one more pernicious effect on American elections: It alerted both parties to the ways in which they could use the country’s lax election rules to their advantage. “Florida served as a wake-up call, but not in the way many people think,” he writes in The Voting Wars. “Florida mainly taught political operatives the benefits of manipulating the rules, controlling election machinery, and litigating early and often. Election law has become part of political strategy.”
Nothing inspired more liberal schadenfreude after November 6 than the batting averages of Karl Rove and Sheldon Adelson. Rove’s American Crossroads super PAC, which spent $176 million attacking Democrats and backing Republicans in federal and state elections, ended up with a rock-bottom 6.5 percent return on its investments. Meanwhile, Adelson, the Las Vegas casino magnate, coughed up more than $90 million—first enabling Newt Gingrich in the GOP primaries and finally dumping $33 million into Romney-backing super PACs in the final weeks of the fall campaign.
Surely conservatives had learned their lesson. Rove—especially after his on-air election night tantrum, when he refused to accept Romney’s defeat after Fox News made the call—had gotten his comeuppance at last. Never again would he be able to fool rich donors and poison our politics with their money. As for Adelson, he would become a symbol of the whole club of filthy-rich suckers who’d bet big on Republicans and lost.
But then, shortly after the election, Adelson sat down with The Wall Street Journal and boasted of the many friends he’d made in Washington, quipping that “the reasons aren’t my good looks and charm. It’s my ‘pocket personality.’” Far from ruing his misspent millions, Adelson came away convinced that he simply hadn’t invested enough. Next time around, he vowed, “I’ll spend that much and more.” Why not? His 2012 investment had amounted to the merest sliver of his total wealth. Besides, if he hadn’t bought a president, he had won his big bet on a new senator, Republican Dean Heller of Nevada.
The next time, who knows? In the week after the election, three 2016 presidential wannabes—Governors Bobby Jindal, John Kasich, and Bob McDonnell—all made pilgrimages to Adelson’s Venetian Resort Casino Hotel. Adelson’s losses hadn’t rendered him less powerful; his willingness to spend mega-millions had made him potentially the most powerful kingmaker in America. Which helps explain why, a few weeks after the election, he could jet to Washington and score private audiences with House Speaker John Boehner and Majority Leader Eric Cantor.
As the post-election debate shifted to the so-called fiscal cliff, Crossroads GPS—the nonprofit arm of Rove’s money machine—began airing $500,000 worth of attack ads on the cable networks. With ominous music accompanying scowling images of the commander in chief, the text scrolled across the screen: “President Obama promised a balanced plan.” The voiceover came in: “But so far, a huge tax increase is his solution.” Crossroads wasn’t folding its tent. Similarly, the Koch brothers’ “social welfare” group, Americans for Prosperity—which spent $39 million in 2012—quickly shifted its attention to lobbying Republicans to reject any tax increase and allow the trillion-dollar budget sequester to kick in.
That’s how money works in our politics. “The most pernicious influence of campaign spending comes not on Election Day but after Election Day,” said Michael Copps, the former FCC commissioner, at the post-election panel. “That’s when the real scandals start. Special-interest donors who contributed six or seven figures are looking for a return on their investment. They’re looking real hard when a special-interest issue comes up before a congressional or state house or local committee or subcommittee. Their access is taken for granted. Seldom are questions asked when they knock on the door of a congressman.”
Big money goes even further at the state level—which might be the most important lesson the billionaires learn from 2012. While Adelson tossed cash at losing presidential candidates, the Koch brothers were following the example of North Carolina’s Art Pope and zeroing in on state legislatures. In Arkansas, the last former Confederate state still controlled by Democrats, Americans for Prosperity infused upwards of $1 million into legislative races, training its heaviest fire on about a dozen vulnerable Democratic lawmakers. Voilà: Republicans ended up controlling both legislative chambers in a state where Koch industries is investing heavily in a massive paper plant.
In their home state of Kansas, where the Kochs’ business interests are vaster, they didn’t seek to change the partisan balance—they wanted to cleanse the legislature of its remaining moderate Republicans. The Kochs backed eight right-wing challengers to Republican incumbents in the primaries and went eight for eight. It doesn’t take a huge investment. In 2010, when more outside money was spent in the states than ever before, state senate candidates raised an average of just $132,000; assembly candidates averaged $66,000. Throw a hundred thousand into a state legislative race, and you can blow it up with drone-like precision. “These super PACs have learned how cheap state politics is,” says Lawrence Lessig. “States are very important in the mix of policies that affect business like the Koch brothers’. They’re all gonna learn, and they’re gonna react, and I expect we’re going to see them operate more effectively next time around.”
It’s not just conservative ideologues and high rollers who have learned from 2012. Shortly after Election Day, House Minority Leader Nancy Pelosi, Senator Chuck Schumer, and White House officials joined a three-day meeting of the Democracy Alliance, an invitation-only group of big liberal donors and leaders of Democratic-leaning outside groups. The alliance had been instrumental in encouraging progressive donors to overcome their initial reluctance to giving to outside groups after Citizens United. “I think we’ve matured a little on this,” says alliance chair Rob McKay. “There were a set of donors who I think would almost use it as an excuse. They could claim, ‘Well, I’m all about public financing. It would be hypocritical of me to give to a super PAC.’ But most of our folks know we’re not going to unilaterally disarm. Would we love to see a public-financing system? Yeah. Are we going to get there in the near term? We know that we aren’t.” Alliance partners are investing in state races. They’re also focusing on election reform, he says, hoping to get the latter issue “off the table. Let’s make sure that one thing we’re not worried about is whether people are going to be able to vote. There’s an enormous competitive advantage if we can clean up elections.”
For more than a century, reformers have tried to quell the unequal power of wealth in American politics. It’s been a positively Sisyphean effort. In 1905, President Theodore Roosevelt inveighed against the influence of businesses on politics, proclaiming, “No enemy of free government [is] more dangerous, and none so insidious.” Two years later, Congress passed the Tillman Act, which aimed to ban, as Roosevelt had promised, “all contributions by corporations to any political committee or for any political purpose.” The ban was extended to unions by the Taft-Hartley Act four decades later. But it never worked as intended. In 1971, the Federal Election Campaign Act made official the loophole that corporations and unions had long exploited: They could form political committees and raise money specifically for them, though they couldn’t spend directly from their treasuries.
Even that scanty limitation didn’t last for long. In 1976, the Supreme Court ruled in Buckley v. Valeo that corporations and unions could open their coffers for “electioneering,” so long as they weren’t directly advocating for or against a particular candidate. Thus commenced the age of “issue ads,” with corporations and unions sponsoring (mostly) attack ads and then urging voters to, as the Supreme Court wrote in a later decision, “call Jane Doe and tell her what you think.” (No advocacy there!) The McCain--Feingold Act in 2002 tried to put an end to those “non-political” political ads, but the Supreme Court ultimately struck it down.
A flurry of decisions between 2007 and 2010 effectively removed every restriction on outside spending. In 2007, 100 years after the Tillman Act, the Court ruled, in a 5-4 decision, that any laws preventing corporate- and labor-financed ads from attacking candidates by name violated the First Amendment’s guarantee of free speech. In 2010, Citizens United and an appellate decision, Speechnow v. FEC, effectively allowed unlimited money to be poured into PACs (which now became super PACs) as well as into 501(c)(4) nonprofits.
Campaign finance has always been a playground for the rich, of the few. But thanks to the loosening of restrictions on giving—by both citizens and corporations—the few have steadily gotten fewer. In 2002, according to PIRG and Demos, more than half of the money raised by U.S. House candidates came in contributions of $1,000 or more, from just 0.09 percent of the population. The 2012 equivalent of that giving—$5,000 or more to a super PAC—came from 0.000342 percent of Americans.
In case you’re still feeling sanguine about President Obama’s re-election, give this a moment’s thought. Last August, Mother Jones reporter Andy Kroll ran the numbers and found that just since April 2011, when his re-election campaign got rolling, Obama had attended 203 fundraisers, which worked out to one fundraiser every 60 hours. By comparison, Ronald Reagan went to only 80 fundraisers in his entire first term. That’s the situation in which elected officials at every level find themselves—spending almost as much time glad-handing the gilded few as they spend doing the jobs they’re seeking to keep.
Lawrence Lessig has coined the phrase “super PAC insurance” to describe the way that money contorts decisions made by those in Congress (and, increasingly, in statehouses as well). “The dynamic is this,” he says. “You’re an incumbent. The biggest thing you fear is that 30 days before the election some super PAC will come in and drop $1 million against you. When that happens, you can’t raise the money you need to match it, because your biggest contributors have by definition maxed out. So what you need to do is secure what you could call super PAC insurance. Which is insurance that if you get attacked, there’ll be somebody to back you up.
“So you get your super PAC insurance by sidling up to the super PACs on your side, and they demonstrate very clearly the behavior you’ll have to demonstrate before they’re going to be willing to support you: ‘So, congressman, we’re happy to help, but we can only support people who have an 80 percent voting record with us.’ That gives you a target, that gives you something to work for. The point about this is: Not a dollar has changed hands for this influence to have its effect. It’s the economy of a protection racket, because now everyone is just looking for the allies they need to protect them against the fear of an attack.”
The rich are different in their political views. In 2011, the Russell Sage Foundation conducted a survey that turned up vast differences between wealthy Americans and the rest of us. The wealthiest were 2.5 times more likely to say that the budget deficit was the country’s biggest problem—as opposed to, say, unemployment. More than two-thirds said that the federal government had “gone too far in regulating business and the free enterprise system.” And they opposed tax hikes on themselves, which most Americans support.
The dominance of wealth narrows the scope of debate and severely limits progressive possibilities. Think about it: Why was Obamacare a boon for insurance companies? Why did Congress let the assault-weapons ban lapse? Why did the “fiscal cliff” debate over raising taxes on the wealthy begin with a ceiling of 39.6 percent, the level during Bill Clinton’s presidency, rather than the 50-plus percent of the Reagan years? Why does the private-equity billionaire Peter G. Peterson, who has spent millions over the years to campaign against Medicare and Social Security, get to lobby members of Congress directly while those who benefit from the programs never will?
Last August, an odd sort of super PAC ad hit the airwaves in eight-term Congressman Charlie Bass’s New Hampshire district. The 30-second spot, called “Get in the Game,” shows a salt-of-the-earth dad with his two kids at a baseball game. They start to sit down front, near a congressman who’s partying it up in the front row with a lobbyist. “Those seats are taken,” the lobbyist says and then fist-bumps his buddy as they laugh derisively. As the family moves back in the stands, the pattern repeats until they’re ultimately about to be driven out of the stadium: All the seats are taken. Meanwhile, the ad enumerates the contributions that Bass, a Republican named in 2011 as one of Congress’s most corrupt by the watchdog group Citizens for Responsibility and Ethics, has taken from big oil—and the favors he’s done in return. “If we don’t vote against Charlie Bass,” the voiceover concludes, “middle-class families will never get in the game.”
It was the initial blast from perhaps the most unusual super PAC in 2012. Looking for a fresh way to counter the influence of big money, Jonathan Soros and two fellow finance reformers dreamt up their group, Friends of Democracy, as a kind of anti-super PAC super PAC. The idea was to show that money--soaked incumbents who oppose campaign--finance reform can be beaten by challengers who support reform. The conventional wisdom has always been that even if Americans loathe the influence of money on our politics, they won’t vote out their own member of Congress because of it. Hoping to prove that assumption wrong, Friends of Democracy raised $2.7 million to challenge eight House Republican incumbents and support progressives who championed election reform. The goal, says co-founder David Donnelly, who also runs the Public Campaign Action Fund, was “to demonstrate there’s political power in taking on the issue of money in politics and demonstrate there’s a political liability to being on the wrong side of this issue.”
The results were stunning. In a year when Republicans fared well in House races, seven of the eight incumbents Friends of Democracy went after were toppled, including Bass. The key, Donnelly says, was “relating the issue of money in politics to issues that people are confronting in their daily lives.” In 2014, Friends of Democracy plans to expand its number of targeted House races, backing not only Democrats but also Republican primary challengers who support reform. It’ll also take aim at “one or two high-profile targets,” possibly including Senate Minority Leader Mitch McConnell, the longtime archfoe of campaign-finance reform.
In a wretched year for democracy, Friends of Democracy’s success was one hopeful sign that maybe—maybe—Americans were ready to act on their frustrations with big-money politics and partisan electioneering. There were others. In Minnesota, a constitutional amendment to require photo ID was polling at 80 percent when it was floated. But after a canny grassroots campaign, it was voted down—a signal that public support for voter ID can be eroded when people understand its implications. Meanwhile, thousands of activists across the country landed anti–Citizens United measures on ballots in more than 150 cities and two states. Every measure passed, even on conservative terrain; Montana’s 75 percent vote in favor was typical.
Can these sparks of reformist energy be converted into a national movement with genuine force? A month after the election, about 125 leaders of 60 prominent progressive groups gathered in Washington, D.C., to talk about exactly that. Naming themselves the Democracy Initiative, they agreed on an unprecedented effort to pool the groups’ resources and mobilize their memberships behind election and campaign-finance reform. While some of the organizations had long been devoted to election reform, others hadn’t previously focused on democracy issues, which made the alliance something new. In fact, the effort was spearheaded by the leaders of Greenpeace, the Sierra Club, the NAACP, and the Communication Workers of America.
So for the first time, reproductive-rights groups, civil-rights organizations, environmental groups, gun-control advocates, education groups, and labor groups are joining the clean-election movement. They’re also putting money behind it. Toward the end of the December 10 meeting, Larry Cohen, who heads the Communications Workers, announced that his group would pitch in $1 million a year to the alliance. The plan is to focus this year on states where reform movements are under way. First target: New York, where Governor Andrew Cuomo has gotten behind the brightest new idea in campaign-finance reform, “donor-matching.”
Most campaign-finance reformers have abandoned the idea of getting big money out of politics or even restricting it—at least until the Supreme Court changes its mind (or its composition). The push now is to multiply the impact of small donors by encouraging candidates to court them as much as they woo that fraction of the 1 percent. New York City has the model system: Contributions up to $175 are multiplied by six with public funds, making a $100 donation worth $700 to a candidate. San Francisco has a similar program with a four-to-one match. The object, says Spencer Overton, is “to have politicians raise a larger percentage of their money from average Americans, rather than raising the bulk of their money from wealthier people who give a few large contributions.” For instance, old-style house parties, which have gone the way of dinosaurs in the world Citizens United made, could again raise serious money. Regular people could organize their own teams—become “bundlers” of small donors who could actually make an impact. Which is good for democracy. Studies show that when people give money to campaigns, they’re also more likely to become involved in political organizing and turnout efforts—they get in the mix. Cuomo has said that a donor-matching program is one of his top legislative priorities in New York, and the Democracy Initiative intends to hold him to that pledge. If it works, the idea will surely spread—just like early voting, mail-in voting, and same-day registration. (Maine, Connecticut, and Arizona have different matching-fund models.)
The emphasis on state-level reform makes sense, because change will not come out of Washington anytime soon. The current political climate makes it impossible. With the demographic winds at Democrats’ backs, Republicans are desperate to hold on to their edge in the U.S. House and state legislatures through gerrymandering, voting restrictions, and securing Wall Street cash. Meanwhile, Democrats are feeling optimistic about having their longest run of White House occupants since the days of Roosevelt and Truman (Barack, then Hillary, then who knows?). They’ve proved they can raise enough super PAC and dark money to win. Why fight for reform when you’ve already got the momentum?
The measures most likely to get a hearing in Congress this year are small-bore. House and Senate Democrats are pitching a variety of bills designed to eliminate long lines at the polls and nudge the country toward uniform voting standards. Some are modeled on “Race to the Top” school reform: States would be eligible for federal funds if they agree to meet minimal standards. Republicans will howl about another desecration of “states’ rights” and also about the expense; one bill’s sponsor reckons it would cost several billion dollars. Another problem: Even if such a program were miraculously to pass, some states wouldn’t even bother to apply. “The states who would opt out,” says Tova Wang, “would be the states where the reforms are most needed.”
The only finance reform with a fighting chance is a revived version of the Disclose Act, which would make dark-money groups bring their donors into the light. But disclosure, while surely a good thing, doesn’t put a dent in the unequal influence of billionaires. Besides, some Republicans have promised to block the bill unless one rather astonishing condition is met: Democrats agree to raise, or eliminate, all campaign-contribution limits.
Given the seemingly intractable obstacles, can we ever hope to wrest our democracy back from the few? While history shows us how difficult it can be to clean up our elections, it also teaches another lesson: All successful efforts to expand American democracy—to give women and African Americans the vote, to curb corporate power over elections (for 100 years, at least), to elect U.S. senators by popular vote—have swelled up from the grass roots, then built from state to state until there’s a national consensus. Sometimes it takes a breaking point, a moment when something happens to turn bottled-up frustrations into demands for change that even politicians and Supreme Court justices can’t ignore. Given the brokenness of our system, such a moment is sure to come. When it does, there must be a movement in place to meet that moment—one ready with ideas that are truly transformative. “You got to give people, as Harvey Milk says, a reason to hope,” Lessig says. “A reason to hope means an alternative that people genuinely believe would change the system, a vision of reform that’s big and bold. Once that’s on the table, I think there’s a lot of people who would begin to rally and build a movement outside the Beltway.”
The possibilities are there—in the constitutional-amendment campaigns, in the organizing power that the Democracy Initiative promises to muster, in the creative challenges to big-money politics that are being cooked up by groups like Friends of Democracy and states like New York. Looked at one way, there’s never been a more propitious time to get a movement rolling. A whopping 88 percent of Americans now say they support national voting standards. Eight-three percent want to curb the influence of corporate money in campaigns. The trouble, as Richard Hasen says, is that “public support is wide but not deep. It’s not at the top of the list of things people are worried about every day. But I think that changed a little in 2012 with the salience of those issues.”
What reformers must do is connect the dots—make it clear that the power elite’s grip on our democracy matters to people’s well-being as much as job numbers and tax rates and the winner of the Super Bowl. Without democratizing our political system, after all, there’s no chance of tackling persistent poverty—no matter whether we elect Democrats or Republicans. No way to begin closing the yawning, and growing, gap between the wealthy and the rest of us. No chance of meaningful action to curb the impact of global warming. Progressive change, the kind we desperately need, is impossible in a system where power is so heavily tilted in the direction of the privileged. Democratizing our elections isn’t a cure-all for America’s ills. But they will never be cured if we don’t.
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