In Citizens United v. FEC and SpeechNow.org v. FEC, the Supreme Court found some regulations on election-related expenditures to be an unconstitutional violation of the First Amendment. As a result, elections are now conducted in a virtual rules-free environment dominated by so-called super PACs.
Unlike conventional political action committees, which still are subject to disclosure laws and remain limited in how much they can raise and spend in making contributions to candidates, super PACs are not. A super PAC can raise as much cash as it wants from corporations, unions, associations and individuals. Furthermore, it can publicly advocate for or against candidates as long as it remains independent from formal campaign structures and does not engage in direct coordination efforts with them. Whereas conventionally regulated PACs can make direct election-related donations to candidates, it is technically illegal for super PACs to donate money directly to political candidates.
In the future, there will be more elections with fewer financial controls, higher spending and less transparency. The post-Watergate regulations designed to limit big money worked temporarily until soft money donors were allowed to operate in the wake of the Supreme Court's decision in Buckley v. Valeo (1976), which found that financial donations are protected under the First Amendment's free speech protections. While the McCain-Feingold law of 2002 still bars lawmakers from raising unrestricted funds for the parties, Citizens United and SpeechNow.org allow super PACs to raise unlimited funds on behalf of candidates and their causes as long as they report their donors to the Federal Election Commission.
Because of these two Supreme Court decisions, campaign regulations have been effectively neutered. Congress has been unwilling to support public financing of campaigns because members would be limiting themselves to how much they can raise. President Barack Obama effectively killed public financing in 2008 when he became the first major-party presidential candidate to reject matching funds. Although he railed against the Citizens United decision, the president's own super PAC, Priorities USA, has raised more than $3 million. This is paltry in comparison to Mitt Romney's super PAC, Restore Our Future, which has raised more than $12 million this campaign season.
Super PACs and other well-funded donors are not making campaign election-related expenditures out of the goodness of their hearts. Cash-healthy organizations and individuals want influence and access to elected policymakers who issue regulations and legislate and execute the laws.
Has democratic governance become nothing more than a pay-to-play system?
Chris Dolan is an assistant professor of political science at Lebanon Valley College and the author of “Striking First,” “In War We Trust” and “The Presidency and Economic Policy.”