In the tale of the rapid influx of campaign money into our political system over the last five years, the Republican establishment often gets cast as the villain. It was, after all, Chief Justice John Roberts and his ideological allies on the court who were responsible for the 2010 Citizens United decision that rolled back caps on how much special-interest groups could spend in elections. And this week, Senate Majority Leader Mitch McConnell (R-KY) ispushing for a rider on the year-end spending bill that would raise caps on party spending in elections, an effort that Democrats, reform groups and the GOP’s right-wing Freedom Caucus oppose.
President Obama, meanwhile, has talked a lot about the need for campaign finance reform. During his 2010 State of the Union address, Obama criticized the Citizens United decision, saying that it “would open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” This prompted conservative justice Alito, seated right in front of him, to famously wince and mouth the words “not true.”
But a new report and a related petition from Rootstrikers, a group focused on cutting the “root” of our political dysfunction through campaign finance reform and Wall Street regulations, shows that the president and his party have not lived up to their rhetoric. The group argues that even without Congress, Obama could, through executive action and political appointments, choose to push his agenda on campaign finance reform just as he has on issues such as climate change and immigration.
Take, for instance, the Federal Election Commission. Created after Watergate, the FEC more than any other agency is tasked with regulating money in political campaigns. But FEC commissioners have been stymied by partisan gridlock for years, and as campaigns experiment with new ways to spend millions and hide the identity of donors, the agency has not been able to keep up. FEC chair Ellen Weintraub recently said in an interview that the agency’s six commissioners couldn’t even decide how frequently to meet, much less how to deal with the country’s rapidly shifting campaign finance landscape. The New York Timesreported in May that in the run-up to an event commemorating the commission’s 40th anniversary, “Democrats and Republicans skirmished over where to hold it, whom to include and even whether to serve bagels or doughnuts. In a rare compromise, they ended up serving both.”
In its report, Rootstrikers argues that some of the blame for the agency’s dysfunction falls squarely on Obama. FEC commissioners are appointed for set terms, and five out of the current six commissioners’ terms have officially expired. In fact, the majority of FEC commissioners have been serving on expired terms for much of Obama’s presidency. Only two of the current commissioners were appointed by the president. (A third Obama nominee withdrew after his confirmation was held up for 15 months by congressional gridlock.)
Without new commissioners, the 2016 campaigns have already tested the meaning of various election laws — like a ban on coordination between candidates and super PACs — without any fear of reprisal. Campaigns and super PACs that swap staffers, share video footage and contractors, and even plan different parts of the same fundraiser events, have flown in the face of the shreds of campaign finance regulation that remain.
Dark money groups are also exploiting tax filing statuses that allow anonymous giving. One favorite designation among donors who want to stay hidden, the 501(c)(4), is supposed to be reserved for apolitical nonprofits that raise public awareness about social issues. One such social welfare organization has already spent an unprecedented $8.4 million on just one candidate: Marco Rubio. Yet, in the wake of the tea party-concocted IRS scandal, the agency plans to stand by and do nothing until after the 2016 election.
Rootstrikers is calling on Obama to give the FEC and the IRS, as well as two other agencies — the FCC, which can regulate political advertisements, and the SEC, which can require companies to disclose political spending — clear directives to act now. The group also wants the president to fill all five FEC commissioner seats with nominees who plan to take action, and to issue an executive order requiring businesses that contract with the federal government to disclose political spending.
“He says its ‘wrong,’ its ‘corrosive to our democracy.’ He says it threatens a potential ‘corporate takeover’ of our elections,” says Kurt Walters, Rootstrikers’ campaign director, of Obama. “And if you say those things and then fail to even bother to use the authority at your disposal to fight back, then it’s fair to say that you must not have been sincere the whole time. Which is disappointing.”
In a forthcoming book on our broken democracy, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, campaign finance law scholar Rick Hasen writes that as America’s inequality grows so does the ability of the wealthy to control who gets elected. Special interests no longer need to cut shady deals to get legislation passed when they can legally put in office politicians who share their viewpoints by absorbing part of the cost of their campaigns and doing the dirty work of funding and creating negative television ads that neutralize other candidates. As of November, 10 times as much dark money — that is, money from anonymous donors — had been spent than at the same point in the 2012 presidential election.
But Obama, in his last year in office, has the opportunity to change that. The petition by Rootstrikers has reached 100,000 signatures — the threshold at which Obama must respond. And Rootstrikers’ Walters hopes he will seize the opportunity to turn his rhetoric into action.
“There are so many issues where the president has taken aggressive, assertive executive action to bolster his legacy and improve the lives of Americans. It includes climate change,” he says. “It includes net neutrality, immigration, criminal justice reform. It reads almost like a complete set of issues save for this one.”