The Political Marketplace
by Robert Boatright
December 31, 2020
Robert | It is common for people to single out the Supreme Court’s Citizens United v. FEC decision as the reason for the increase over the past decade in election-related spending. But, it was widely and incorrectly portrayed in the media as something that gave corporations speech rights, or gave corporations the right to contribute money to candidates. Corporations have had political speech rights of various sorts since the 1980s, but they were not the main beneficiaries of the decision.
In practice, what Citizens United did was to give a small class of very wealthy individuals the opportunity to give as much as they wanted to groups that would become de facto arms of the campaign, Super PACs.
It's important to point out that this small group of wealthy people is not made up of the best-known billionaires. We don't necessarily see humongous campaign contributions by somebody like Bill Gates and Mark Zuckerberg. Instead, the people who have taken advantage of the decision are people like Sheldon Adelson or Tom Steyer — people who were not particularly well known before they began their political spending, and who wanted to make a name for themselves as political players.
Do you think it's important for the public understanding of “money in politics” to draw a distinction between individual billionaires with political aspirations vs. corporate spending?
Yes. There are many avenues for corporation influence in politics. But most American corporations are pretty risk-averse. Take, for instance, the American automobile industry. They got used to emission standards during the Obama years and before. Maybe they didn't like them, but they started building their cars to comply with the law about what sorts of emissions you can have. When the Trump administration came in and said, no, we're going to do away with these things entirely, they didn't care for that. American businesses for a variety of reasons do not want to disrupt the status quo. On the other hand, major super donors do.
American corporations are concerned about public opinion. It's not like corporations are going to be a force for radical social change, but corporations will move with the public. Take an issue like same-sex marriage for instance. Broadly, American corporations have moved with the American people on that, and corporations that didn't wound up finding it politically problematic. When Target, for instance, was exposed as having contributed to a Super PAC that supported really conservative candidates back in 2012, they apologized profusely and put a whole lot of money behind LGBTQ causes. After that, they really got out of the business of funding super PACs. The individuals who tend to support or create super PACs, on the other hand, are not necessarily concerned with public opinion.
If Citizens United and the rise of the Super PACs did not open new doors for spending money, what are the typical channels that corporations spend money through?
There are several ways to do this. Individual corporate leaders can make their own contributions. Corporations can establish political action committees. They can't compel their employees to contribute to PACS, but by and large, the executives and the people with money to throw around to big corporations will contribute to the PACS. And then PACS can turn around and contribute to candidates in limited amounts, you'll have 5,000 bucks for a candidate per cycle, or to the party committee.
A lot of influence can be wielded if you put that together, but it's influence that's accountable. It’s a different thing to say that corporations contribute a lot of money to politicians than it is to say that any single corporation has significant influence. I think much of the influence that corporations have is not necessarily money, but in that they have access to politicians through lobbyists, because they have expertise on matters of legislation, or because they employ significant numbers of people in a legislator’s district.
Politicians are simply more likely to hear from corporate leaders or corporate lobbyists than they are to hear from regular citizens.
In your book The Deregulatory Moment you talk about how we are one of the only countries that equate money with speech. Can you talk about that?
I'm not an expert on international comparative constitutional law, but many countries do not have this sort of first amendment absolutism that we have. Other countries generally have protection for free speech but have various kinds of circumstances in which the government can limit it.
We do not, due to a series of Supreme Court decisions on campaign finance that have been made since the mid-1970s. In large part, it has a lot to do with this very idiosyncratic, composition of the court, and the decisions of individual judges. Campaign spending has been framed as speech, and it has been decided that it should not be limited, except in the instance of quid pro quo corruption by an individual donor. Other countries I think have had different sorts of values.
What explains our First Amendment absolutism?
There's business rhetoric about deregulation that has been popular in the U.S. for a few decades. When Citizens United was handed down in 2010, a lot of folks on the political right started talking about politics in this way: ‘We need to deregulate political campaigns. We need to get the government out of the business of deciding who gets to speak and who doesn't.’
We are unique in how we think about campaign finance as a matter of speech, as a matter of free expression.
Other countries have had rhetoric about deregulation for some time, but they’ve been slower to apply this rhetoric to political campaigns..
The U.S. is one of many countries where business interests have become more interested in elections, but we’ve responded differently. As I document in my book Interest Groups and Campaign Finance Reform in the United States and Canada, Canada responded by helping candidates by creating a really extensive system of public financing. The U.S. did nothing of the sort. The U.S. basically raised limits on what people could give to candidates and tried to balance things that way, which was not nearly as effective. This has created a sort of arms race.
You can think of deregulating some sort of business product to make it possible for corporations to present that product to the consumers. But ultimately, I think the analogy of the market to politics doesn't necessarily translate. If beverage companies, for instance, put dozens of soft drinks on the grocery store shelves, we can be confident that ultimately we can find the product that we want. We're going to be able to find a way to select what we want from a range of options.
This sort of argument has an intuitive appeal, it plays on the notion that we want to have choice. But in a two-party system, we're going to wind up in the end with a relatively narrow list of options. I think the average American is resistant to the idea that political parties would whittle down our choices or that there should be some structure imposed on our politics before we get to the point of voting. But, when we don't do that, we get candidates we don't want. We wind up with other people making those decisions for us in a far less democratic way.
What would it look like to increase political parties' influence?
Parties have limits on what they can contribute to candidates, and these limits are higher than they used to be but are still relatively restrictive. There are also limits on parties' abilities to coordinate with candidates and their campaigns. Both of those things could be lifted to allow for direct cooperation and the sharing of resources. I think part of the issue here is not so much what limits there are in parties, but the fact that interest groups don't have similar limits. Instead of thinking about giving parties more power, if you limit what interest groups can do, parties in effect have more power.
Why do you think Americans are resistant to political parties?
I struggle with that because I teach in a college with a lot of very idealistic 18 to 19-year-olds. They don't want to believe that the political parties are doing them a favor. If you think back to the 2016 election, many of my students thought that the Democratic Party did them wrong by putting its finger on the scale for Hillary Clinton. They see this in congressional races too. They'll find these congressional races where it's clear that the Democratic party thought that its best chance of winning was in picking a more centrist, more moderate candidate. My students get pretty upset about this.
It is difficult to make the argument that parties are forces for moderation, that parties are ways to select broadly acceptable candidates, and that that's a good thing. That is a difficult argument to sell.
My students are representative of a lot of the American public in that people get excited about the long-shot candidate. They don't necessarily want to support efforts that would limit those candidates, even if limiting those candidates would bring about ultimately more acceptable political outcomes for the system.
What is your argument for parties being good vehicles of selecting "acceptable" candidates with specific policy proposals that seem to be at odds with, as you said, a lot of the American public?
Parties will always contain diversity within them. Take the Democratic party. The Democratic party is always going to have some sort of regional diversity because the party wants to win. You're going to have candidates like Alexandria Ocasio-Cortez in districts that will support somebody that's relatively far to the left. At the same time, it is in the interest of the Democratic Party to try to support more conservative candidates in more conservative parts of the country. Parties learn over time; if candidates with different ideas do particularly well in particular places, parties will take an interest in them. Parties are not undemocratic, but they do act as filters between individual candidates and the public that I think ultimately citizens need.
Your point that parties may produce more moderate candidates is an interesting one. We recently spoke to Wendell Potter, an ex communications executive, who did a lot of work lobbying. He mentioned they would target moderate candidates because that’s who was most amenable to big business interests. Is there a danger in parties producing those sorts of candidates?
It's a different kind of money. You have all these instances of corporate interests that want to broadly support candidates in the middle of the political spectrum. Many of the issues that groups like these care about are things that are technical enough that you're never going to have exciting political campaigns based on that.
To clarify, he was working for the healthcare insurance industry, and specifically recalled lobbying against healthcare reforms, at both the state and federal levels. Reforms which it does seem campaigns have been run on lately, and which the public does have an opinion on.
It's a valid criticism to say that corporate interests are going to want to reinforce the status quo at a moment when America has got all sorts of pressing problems that status quo politics was not going to address. That's a different sort of financial problem because what you're talking about there is the ability of corporate PACS to speak to politicians, and the ability of people who can round up a substantial number of individual donors to speak to politicians directly. That's something that you can criticize, but something that has been a feature of our politics for decades.
This requires a whole different agenda that has to do with lobbying, that has to do with giving politicians more incentives to listen to people, which is important, but beyond the scope of Citizens United.
Efforts like Potter’s are important, but it’s important that we understand that the reforms he’s talking about don’t require us to get rid of Citizens United and that the problems he’s talking about were there before Citizens United.
Public financing reforms are one solution, of many, that experts look at. Do you think we will ever return to a federal financing system for presidential elections?
At the moment there doesn’t seem to be much political will to do this, but the presidential public financing system did also play a role in limiting spending and leveling the general election playing field. It’s important to distinguish here between public financing in the primary and the general election. From 1976 through 2008, we had a system of funding primary campaigns, where small contributions to a presidential campaign, were matched by a federal contribution up to a particular amount. And then we had full financing for general election campaigns.
A candidate could still use public financing for primary campaigns, it is not like it's gone away, but it hasn't kept pace with inflation. No serious presidential candidates would want to limit themselves in this way.
The last general election nominee that took the primary election subsidy was Al Gore back in 2000 and the last candidate to use the general election subsidies was John McCain in 2008.
We can't tell candidates to limit what they spend — that is unconstitutional. But there’s a lot we could do to make public financing more attractive or to use it to incentivize certain kinds of behaviors. For instance, we could perhaps tell candidates they will get public financing if they disavow the efforts of any super PACs spending money on your behalf. That would be kind of effective in ensuring that the candidates who were able to progress in the primary were people who had broad public support, as opposed to having the support of one super PAC that was funded largely by one person. It would ensure that we had a primary process that to some extent reflects the will of the voters, as opposed to the will of a few rich people.
I haven’t run into a lot of arguments that put all of these different pieces of campaign finance together in a way that would really excite the public, however. Many Americans worry about the effect of money in politics, but just as it’s hard to convince people that we should give more power to political parties, so it can be difficult to convince people that the government should give money to candidates. I think most campaign finance scholars agree that our system faces challenges today that it didn’t face a generation ago, but we’re not yet at a moment in our history where a clear alternative is emerging, and just saying we should go back to the system we had in the 1990s or so isn’t feasible in today’s world.