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It’s a Koch brother’s world – Campaign finance law in the post-Citizens United era

The parties are already gearing up for the US election in  2016. picture: Vox Efx, Flickr
The parties are already gearing up for the US election in 2016. picture: Vox Efx, Flickr

Two of the richest people in the world, the Koch brothers have long helped shape the conservative arena of American politics. Going into the 2016 presidential race, they’ve recently announced that the political action network that they’re backing is going to spend 889 million dollars in the run-up to the election. Leading Democrats have responded by warning that they won’t be able to match this bid.

889 million dollars is a lot, even in the American political context. It’s twice as much as the Koch networks spent on the 2012 election, and more than both political parties’ National Committees will be able to shell out this time around. Politico called this “a historic sum that […] would mark Charles and David Koch […] as more powerful than the official Republican Party.”

While this is an unprecedented sum in its size, big money from individual donors has been spent on American elections before. What makes the Koch brothers – and their backing network of fellow billionaire buddies – unique, is the fact that they know what they’re doing. Normally, the big money that individual donors spend in elections is “righteously stupidly spent”, in John Dickerson’s words. The people willing to spend this kind of money aren’t necessarily the people best suited to determine where the money would be most efficiently used. For this reason, the sometimes outrageously large sums of money that these donors are willing to pour into politics are not utilized to the extent that they could’ve been in the hands of, for instance, the political parties themselves.

The Koch brothers, on the other hand, could prove to be a more powerful right-wing force than the GOP itself, if they spend their money in a smart way. So far, everything suggests that they will. While no specifics have been announced about where their money is going to end up, it’s clear that they’ll be spreading it around in quite a few, wisely chosen, places. The Kochs have long been on “the cutting edge of technological operations”, and will be smart about opinion polling and targeting specific people with their message. Think-tanks, foundations, universities, and other free-market and anti-environmental legislation opinion building groups will be getting their share as well.

Only five years ago, this massive drive from an oil corporation like Koch Industries would perhaps not have been possible. The 2002 Bipartisan Campaign Reform Act limited political campaign donations from corporations to contributions to PACs – Political Action Committees – which are subject to contribution caps. It also imposed aggregate limits on campaign contributions: during one election cycle, one individual could only contribute a maximum of 5 200 dollars to a specific candidate, and up to 48 600 dollars total.

The BCRA wasn’t the first of its kind, but it was a first in effectiveness. During most of the 20th century, there have been various disclosure laws and spending caps in place, but none of them seemed to have a lasting effect. If they weren’t struck down by the Supreme Court, they’d end up being ignored until they were more loophole than law. The BCRA was an amendment of the 1971 Federal Election Campaign Act, and the first real effort to close that law’s gaping loopholes.

Generally, promising campaign finance reform has been a popular way for candidates to portray themselves as Washington outsiders, and put some distance between themselves and the political fatigue of the general electorate. In the 2000 presidential elections, both Republican primary challenger John McCain and Democratic nominee Al Gore swore to ensure campaign finance reform while in office. John McCain did in fact end up being an active agent for this change in his role as Senator, as he co-sponsored the BCRA along with Democrat Russ Feingold.

Promising campaign finance reform is a tried and true way to align oneself with public opinion on an issue that doesn’t split cleanly along party lines. It’s one of the few real win-win positions a politician can take. A 2013 Gallup poll asked participants if they would vote for a law that would put a limit on the amount of money candidates for Congress were allowed to raise and spend in an election. 79 percent said yes.

But the success story of the BCRA was short-lived. Although the Supreme Court declared it constitutional in 2003, they later heard a case, in 2010, that would undermine the majority of the foundation for the law. The case, Citizens United v. Federal Election Committee, asked questions about what kind of limits can constitutionally be put on a corporation’s political identity.

Photo of the Supreme Court Justices who took the decision in 2010 that money is equal to speech.
Photo of the Supreme Court Justices who took the decision in 2010 that money is equal to speech.

In their 5 to 4 reasoning – split along partisan lines – the Supreme Court majority equated money to speech, in the First Amendment sense of the word. The conservative Justice Kennedy, who wrote for the majority, claimed that limiting the way that companies contribute to political campaigns is a violation of the First Amendment right to free speech, and is therefore unconstitutional. Likening money to speech in this way was and remains controversial, and has been heavily criticized, primarily from the liberal side, as a “catastrophe for political corruption”.

Citizens United was followed by the 2014 decision of McCutcheon v. Federal Election Committee, in which the conservative majority killed the aggregate contribution limits for individuals as well. In this case, Chief Justice Roberts wrote the majority opinion, arguing that corruption should be defined only as actual, documented, quid pro quo. If you’re following this line of thinking, there’s no reason to limit campaign contributions, since actual bribery is still prohibited.

In these two blows, Roberts and his fellow conservative justices struck down the heart of post-Watergate campaign finance regulations, and big money has essentially been let loose on Washington again. With two strikes against it, the future of donation caps for public office campaigns is looking bleak.

Klara Fredriksson

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