Last Saturday marked the two-year anniversary of the controversial U.S. Supreme Court ruling in Citizens United v. Federal Election Commission. Citizens United overturned decades of campaign finance law by extending First Amendment protection to political expenditures by corporations and unions. In tandem with other court rulings and with decisions by the Federal Election Commission (FEC), Citizens United allows independent expenditure committees (Super PACs) to collect unlimited sums from individuals, labor unions, and corporations. Super PACs can spend unrestricted amounts of money on ads in support of or opposition to candidates, provided they do not donate directly to or coordinate with them.
The ruling became an instant fault line in American politics, leading to heated debate and one of the most incendiary issues of 2010. The decision itself was highly contested, with Justice John Paul Stevens authoring a strongly worded dissent. In the weeks after the decision was released, an ABC-Washington Post poll showed that 80% of those surveyed opposed the ruling, sentiments that President Barack Obama echoed in his 2010 State of the Union Address. Justice Samuel Alito’s mouthed retort left commentators across the political spectrum arguing about potential breaches of decorum on both sides.
“Occupy the Courts,” a movement part of the “Occupy Wall Street” protests, has lambasted the decision for enabling wealthy donors to bombard swing state voters with negative advertisements. Even comedian Stephen Colbert has made a mockery of the lack of regulations regarding what Super PACS can and cannot do by creating his own Super PAC. Currently, opponents of the decision are considering unlikely range of tactics in response, including constitutional amendments.
The 2012 election is the first election for president to take place with the influence of Super PACs. Notre Dame Law professor Lloyd Mayer, in an interview with The Politic, predicts that, “Super PACS will likely target presidential swing states and close federal and state elections, ignoring other sates and elections.” This conclusion is reinforced by data derived from the CRS Super PAC report. Of the $40,841,528 Super PACs spent on 2010 senate races, $28,422,989 (70%) was spent on just seven races ranked by RealClearPolitics as “toss-ups,” which accounted for only 19% of contested seats. As Mayer predicts, Super PAC money was strongly concentrated in the small number of truly competitive races. Furthermore, this money appears to primarily fund negative campaigns, adding to what many Americans feel is a growing problem of divisiveness and negativity in politics. For instance, approximately 80% of ads in the Republican primary funded by Super PACs were attack ads.
Money has been an integral part of political campaigns long before the Supreme Court made its 2010 ruling in Citizens United. The 2008 presidential campaign saw record-breaking fundraising efforts with Barack Obama raising a total of $745.7 million in private funds after declining to receive public funds. Money will continue to be important in politics, unless we look at the issue from an alternative perspective.
Most reformers focus on how to affect the supply of money in politics. When it comes to money in politics, FairVote’s focus is on electoral reforms that will reduce the demand for money in politics by reducing the impact of money. We examine the way the electoral system creates incentives for politicians to target expensive campaigns at the handful of “swing” voters that decide election outcomes and to rely on excessive negative advertising. Changing the electoral system, and thereby changing the incentives, is a promising means to “keep money in its place.”
The underlying problem behind the lack of meaningful elections in America is the winner-take-all rule. Winner-take-all is an electoral rule wherein the candidate with more votes than any other candidate wins the election, without taking into account the preferences of voters who did not vote for the winning candidate. This system traps most voters in elections they have no hope of affecting, accentuates the effects of gerrymandering, and encourages presidential candidates and big money interests to focus on the small set of swing states and swing districts where persuading 4%-5% of voters will change who’s in the White House, runs Congress and runs our state legislatures.
With winner-take-all rules, political activity only makes sense when candidates are not comfortably ahead or hopelessly behind Long before the Citizens United decision, the majority of senate and congressional races, as well as the presidential race in most states, were and are considered “safe” for the Democratic or Republican Party - which is just another way of saying that the elections in those states and districts have been reduced to meaningless formalities.
But what if every election was meaningful? What if presidential elections depended on more than a handful of swing states, Senate races provided more choices than the party-appointed candidates, and voters were not locked into congressional districts designed to re-elect incumbents? FairVote’s proposals to change winner-take-all voting rules would reduce the impact of money by increasing the impact of voters. When it comes to a general election choice between candidates representing different parties, most voters know what they want – freed from winner-take-all, their power to earn representation is not affected by money.
Each of FairVote’s core reform proposals in their own way would reduce the power of money in politics. Let’s review them briefly:
- A constitutional right to vote and reforms to enhance voting rights and participation: A great deal of money is spent trying to get people to vote – or to get people not to vote. If we developed rules and cultural norms promoting high participation, such spending would be less affective.
- A national popular vote for president: Today, 99% of campaign spending in the final months of the general election for president is focused on “battleground” states” representing about a third of Americans. In those states, it is focused heavily on swing voters. If every vote counted in every election, that money would need to be dispersed more widely- -and create new incentives for grassroots organizing to build and sustain voter turnout in every election.
- Instant runoff voting: This ranked choice voting systems makes it easier for more than two candidates to seek a winner-take-all office by essentially eliminating the “spoiler” problem associated with our plurality voting system. It would make negative campaigns a losing proposition because winning candidates would have to appeal to voters rather than drive away their opponents’ voter in order to receive second- or third-choice support. Negative attacks designed to hurt a candidate are less certain to help the perpetrator of such attacks when there are more than two candidates. That helps explain why in a number of major instant runoff voting elections for mayor in recent years, candidates better at grassroots organizing and coalition-building defeated candidates who spent much more money.
- Proportional voting: Most fundamental of all, proportional voting provides an alternative to winner-take-all elections for legislatures. It allows most voters to help elect a candidate of choice by joining with like-minded voters: 10% of the vote earns 10% of seats, 33% of votes wins a third of seats, 51% of votes wins a majority of seats and so on. The many voters not affected by money in their voting decisions would be liberated to elect candidates they like.
FairVote understands why the campaign finance debate generally focuses on the regulations under which campaign funders operate. But we offer an alternate perspective: by changing the incentives that motivate campaign funders, we can change the way campaigns are run.
Colbert Photo Credit: Tyler Sadonis