A couple of approaches to trying to correct the wrongheadedness of Citizens United without fiddling with the Constitution have been put forward. Fred Wertheimer, of the organization Democracy 21, who has worked in the campaign finance reform field since the early Seventies, may have come up with a useful way of getting Super PACs out of our elections. Wertheimer collected evidence of the interconnections between the campaigns and the candidates, and in a letter on January 10 to Attorney General Eric Holder requested that the Justice Department examine the question of whether it did not follow that the candidates had a hand in setting up the Super PACs. Were the Justice Department to find evidence of Wertheimer’s supposition, a criminal suit could be brought against the offending officials. He also argued that these kinds of contributions to a candidate’s political committees should be held to the $2,500 limit set by the 1974 law that is still in place.
But the Justice Department—and the president it serves—might be reluctant to bring a criminal suit against officials who established Super PACs. (A president might have benefited from one.) Another route would be through new legislation to assure the independence of the Super PACs. But even if this could be achieved another serious problem would arise: political consultants could be making their own decisions about what would help their candidates, who could lose control of their own campaigns.
It’s possible that the growing public revulsion against the huge new infusions of money being poured into the election contest—distorting it, prolonging it, and subjecting the candidates to far greater obligations than ever to their big donors—will shame politicians in Washington into putting a stop to this form of corruption of the election process. If they had the courage to eliminate the Super PACs, which under Buckley could be done in connection with public financing, that would restore the primacy of the system that has been in effect since 1974, which provided such financing for presidential elections.
The abuses of soft money could be curbed in a way that doesn’t violate constitutional principle. The amount of money provided by public financing might be deemed insufficient to induce presidential candidates to stay within the system—it would also limit the amount that they could spend. In 2008, Barack Obama turned down public financing so that he could raise more money on his own. But the amount of money the candidate would receive could be enhanced by partial public financing, in which limited individual contributions would be matched by public funds. This would enable candidates to have a floor of sufficient financing to assure a competitive race.
Backers of this proposal say the incentive for future presidential candidates to accept such financing would come from political pressure establishing a “new norm” that would encourage such behavior. It’s too late to rescue this election from the appalling imposition of Super PACs. Strong public pressure would have to be brought against the president and Congress so that there would be sufficient time to fix this situation even before the next presidential election.
Ever since the controversial recount in Florida in 2000, through their political control of numerous states, Republicans have mounted a nationwide and organized effort to rig state election laws in order to tip the outcome in November. (This is not to say that Democrats are innocents, but there is scant evidence of a parallel effort.) The goal of this pernicious effort is to deny the right to vote to minorities, the poor, the elderly, and students—all groups inclined to vote Democratic.
In all, since the 2010 election twenty laws of varying types have been adopted in fourteen states that will have the effect of limiting access to the voting place. Republicans are so much in favor of voter ID laws that the Bush administration joined the state of Indiana in successfully defending its law, enacted in 2005—the first in the nation and the start of a trend. Though the Supreme Court upheld the Indiana law, it commented on its rationale—offered in defense of all these efforts—by saying there was no evidence of voter fraud in all of the state’s history. The more recent measures are stricter about what sort of ID can qualify someone to vote: a few states have banned student IDs, and Social Security cards are no longer accepted. The Obama Justice Department has moved to block voter ID laws in South Carolina. According to information gathered by the Brennan Center for Justice, which has done comprehensive work in the field of protecting citizens’ rights, 11 percent of American citizens, or over 21 million people, don’t possess a government-issued photo ID.
Another device for suppressing the vote is to require proof of citizenship, such as a birth certificate, in order to register. Maine and Ohio have passed laws ending same-day registration; five states have passed laws to restrict early voting; and three states have limited voter registration drives. Florida has been particularly tough on these and the percentage of registered voters in the state has been dropping precipitously. According to the Brennan Center at least nine states have attempted to make it harder to vote by introducing bills reducing the period for early voting and limiting the opportunity to vote by absentee ballot.
Wisconsin moved its primary to a date when college students would be on a break. Some states have reduced the number of polling places, making them harder to reach for people without transportation, and in order to make it more difficult to obtain a driver’s license Wisconsin reduced the number of DMV offices.
Defenders of these laws argue that they’re essential for preventing voter fraud—but in fact there hasn’t been solid proof of such a problem. Voter fraud has been a Republican obsession, fantastical or not. Officials of the George W. Bush administration insisted that it was widespread, and in 2007 the Bush White House ordered the Justice Department to fire seven US attorneys—Bush appointees all—several on grounds of failing to pursue charges of voter fraud.
Some of the fired US attorneys said that they had seen no serious evidence of such a crime. There are rules against launching investigations of voting groups close to an election lest it amount to voter intimidation. It was later found that the Bush administration had been calling for voter fraud prosecution in the parts of the country of the greatest importance to George W. Bush’s reelection in 2004, and “voter fraud” was a useful talking point for Karl Rove and others. The Justice Department inspector general later said that the firings of the US attorneys were “fundamentally flawed” and “raised doubts about the integrity of Department prosecution decisions.” Other ruses were employed to discourage voting (such as telling blacks the wrong day of an election).
Republicans have made a particular target of ACORN, an organization made up of community-based organizers whose activities included voter registration of low-income people. ACORN volunteers were paid according to the numbers they registered, and some of their registrations were found to be invalid. Seventy ACORN workers have been convicted of adding false names to voter roles. (However, if, to take one example, Mickey Mouse were registered, he wouldn’t be likely to show up to vote; if one person were registered three times, she would likely be able to vote only once.) Registration fraud is a different thing than voter fraud, but still ACORN brought disgrace to efforts to improve voter participation. It is now shut down. But nothing was found that warranted the widespread pattern of deliberate efforts by Republicans to suppress voting by poorer groups. The Republicans took political advantage of the opportunity handed them by ACORN’s sloppy and illegal actions.
The laws on voter ID in Republican-controlled states have been quite similar. Model bills on this and a number of subjects were provided by the American Legislative Exchange Council (ALEC), an organization of multinational and other large corporations and conservative federal and state legislators. ALEC also receives major funding from the immensely rich Koch brothers, who back a number of conservative causes. The Koch brothers’ support of ALEC has expanded their influence in Republican states.
Governors and legislators introduce ALEC’s model bills as their own, with no acknowledgment of ALEC, exemplifying their leadership qualities. Legislators who succeed in getting the legislation through Congress are the featured speakers or are given awards at ALEC meetings. ALEC funds supported the election of some Republican governors who have been prominent in trying to reduce the power of public employee unions: they include John Kasich of Ohio, Scott Walker of Wisconsin, and Janice Brewer of Arizona. Another ALEC goal is the dismantling of campaign finance laws.
Citizens are now faced with evidence of the growing power of organized moneyed interests in the electoral system at the same time that the nation is more aware than ever that the inequality among income groups has grown dramatically and economic difficulties are persistent. This is a dangerous brew. Political power is shifting to the very moneyed interests that four decades of reform effort have tried to contain. The election system is being reshaped by the Super PACs and the greatly increased power of those who contribute to them to choose the candidates who best suit their purposes. But little attention is being paid to the fact that our system of electing a president is under siege. While the political press is excitedly telling us how the polls on Friday compare with the ones on Tuesday, little notice is taken of the danger to the democratic system itself.
Much of the citizenry has become more restive—less accepting of the way things are. Can an election that’s being subjected to such seriously self-interested contortions be accepted by the public as having been arrived at in a fair manner? And what will happen if it can’t?
—January 24, 2012