The same number of people that would constitute the guest list at a small wedding gave about 30 percent of the money being spent to determine the next leader of the free world. And about half of the money raised so far has come from slightly more than 100 families.
An enormous amount of money will be spent in the next presidential election, and much of it will come from a few hundred of the approximately 319 million people who live in our country.
To say that we have a donor class is an understatement. A small sliver of wealthy people spend large sums to influence the campaign narrative for the most important political race in the world.
The new order created a system in which billionaires Charles and David Koch last weekend hosted the “Koch Primary” in Dana Point, for Jeb Bush, Scott Walker and a few other Republican presidential candidates who hope to benefit from the millions the Kochs and their fellow free-market travelers will spend on the 2016 election.
Much of this campaign money is not being given directly to candidates. It is being given to outside groups, such as super PACs, which are not subject to contribution or expenditure limits. For now, federal law limits candidates to raise money in $2,700 chunks per election from individual donors.
We have created a shadow network of donors and spenders who operate separate from, but arguably in close connection with, our political candidates. These big donors dictate which candidates are competitive and which issues the voters hear the most about. It is a sad state of affairs when the best funded, as opposed to the best equipped, rise to the top.
It’s a system, described by The New York Times last week, in which about 30 super-rich people are funding shadow campaign operations for candidates of their choice. Hedge fund entrepreneur Robert Mercer, for example, spent $11.3 million to help Texas Sen. Ted Cruz.
Auto dealership magnate Norman Braman infused Florida Sen. Marco Rubio’s super PAC with $5 million. Former Univision chairman A. Jerrold Perenchio helped keep Carly Fiorina’s campaign afloat with $1.5 million. Various wealthy Democrats including Steven Spielberg gave $1 million each to a super PAC backing Hillary Rodham Clinton.
It did not have to be this way.
The U.S. Supreme Court has made a complete hash out of campaign finance laws. In the wake of the Watergate scandal, Congress realized it had to act to limit the pernicious influence of money in politics and enacted and amended our country’s first comprehensive campaign finance law. The Federal Election Campaign Act limited, among other things, the amounts that could be given to and spent by candidates and outside groups.
But what happened next is a disaster. As so often happens as Congress passes a piece of landmark legislation, that legislation was challenged in court. The Supreme Court threw out half of the FECA, finding that many expenditure limits violate the First Amendment. Essentially Congress came to the Supreme Court with a nicely tailored suit and the court said, “Great jacket, but we hate the pants.”
During the next few decades, the court has revisited and thrown out other parts of the act, including sections that limited the amounts that corporations and unions can spend in candidate elections, and restricted the overall amount that individuals can give to candidates and political parties. That aggregate cap had been $117,000. Now, it’s all but limitless. So the Supreme Court not only threw out the suit pants, it ripped off the jacket sleeves and removed the collar.
Now when we take a gander at the pantsless, sleeveless, collarless suit, it looks terrible. It doesn’t work; no one would wear it. The same is true of our campaign finance laws; they don’t work. This is not because a sensible set of campaign finance laws could never work, but rather because we never had the chance to see, thanks to some overzealous tailoring by the Supreme Court.
We are left with little more than limits on the amount that candidates can raise and disclosure provisions. Disclosure provisions, while perhaps akin to a bright red tie meant to brighten up that drab old suit, alone cannot and will not accomplish the goals the contribution and expenditure limits sought to achieve.
People like me hope that current and future members of the Supreme Court will put the suit back together. While we wait for that to happen, the only thing that will stem the tide of money in our elections is the voters. If voters reject the choices of the mega-donors, those donors may realize they are making a bad investment and stop spending.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and vice president of the Los Angeles Ethics Commission. She blogs at PoLawTics.lls.edu. Her most recent piece for The Bee, “Citizens redistricting panels survive test,” appeared on June 29. Follow her on Twitter @LevinsonJessica.