Can We Safeguard Our Democracy After McCutcheon?

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Supreme Court Chief Justice John Roberts waves after giving the commencement address on Friday, May 24, 2013, at LaLumiere School in LaPorte, Ind. (AP Photo/South Bend Tribune, James Brosher)
Supreme Court Chief Justice John Roberts waves after giving the commencement address on Friday, May 24, 2013, at LaLumiere School in LaPorte, Ind. (AP Photo/South Bend Tribune, James Brosher)

The Supreme Court’s evisceration of our campaign finance rules is a powerful argument for the cleansing properties of sunlight. We should respond to McCutcheon by pushing for the full and timely disclosure of every penny donated to advance a political agenda.

If America’s wealthiest can offer unlimited dollars to shape our politics, the least we can do is force them to own their activism. It’s time to get rid of the loopholes for sham “social welfare” organizations and trade groups. It’s time to wipe out the dark money, and force those wealthy few to publicly stand behind their positions.

That’s not only a good and timely idea – it may also be the only viable tool we have left to protect our democracy, at least for the foreseeable future.

When the Supreme Court handed down its decision in McCutcheon, Sam Steiner, a fellow at Yale Law School, wrote that the court’s conservatives have “no idea how money works in politics.” It’s a common criticism. As Justice Stephen Breyer noted in his dissent in McCutcheon, the conservative bloc’s decision in the case rested “upon its own, not a record-based, view of the facts.”

But it’s more likely that the justices know exactly how money works in politics. Several studies have shown that the court’s conservatives are far more likely to engage in “judicial activism” than their liberal counterparts. In Citizens United, they went so far as to order the litigants to re-argue their case on First Amendment grounds, prompting former Justice John Paul Stevens to write, “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

There’s no reason to believe that a majority that almost always rules in favor of the US Chamber of Commerce doesn’t know what eviscerating our campaign finance rules means. Rather, they’ve been working to create the world they want to see. Ari Berman wrote that the Roberts court has consistently “made it far easier to buy an election and far harder to vote in one.” (Ironically, just eight months after gutting the Voting Rights Act in Shelby County v. Holder, John Roberts wrote in McCutcheon that “there is no right more basic in our democracy than the right to participate in electing our political leaders.”)

But even as the 5-4 majority trampled longstanding campaign finance rules designed to check the influence of the wealthiest Americans, they left open one avenue to restrain our slide toward plutocracy: In both Citizens United and McCutcheon, they suggested that disclosure requirements would be enough to prevent the corruption of our electoral process.

Conservatives have long championed that position as an alternative to limits on political spending. For two decades, Senate Minority Leader Mitch McConnell (R-KY) preached that disclosure was the Holy Grail of campaign finance reform — the perfect way to balance the rights of the wealthiest to engage in politics with the public’s interest in not having the voices of ordinary citizens drowned out by megaphones wielded by billionaires.

As an editorial in the Lexington Herald-Leader pointed out, in the late 1980s, McConnell co-sponsored legislation — with his current nemesis Harry Reid (D-NV) — that “would have required disclosure of independent groups or individuals who intended to spend more than $25,000 promoting or attacking a candidate.” In 1996, he “supported public disclosure of all election-related spending, including spending by independent groups and contributions to political parties.” A year later, he would write, “public disclosure of campaign contributions and spending should be expedited so voters can judge for themselves what is appropriate.” As recently as 2007, McConnell threw his weight behind an amendment that “would require organizations filing complaints before the Senate Ethics Committee to disclose their donors so the public could have more transparency.”

But a few years – and a couple of key campaign finance cases – later, and McConnell now argues that disclosure rules are “un-American.” In a relatively short span, they became a Democratic “plot” to rig elections.

The DISCLOSE Act, which would require greater transparency – and bar foreign companies and firms that received bailout funds from funding campaigns — has been blocked twice by Senate Republicans in the past four years, and Mitch McConnell led the opposition. Dan Froomkin reported for The Huffington Post that 14 of the GOP senators who filibustered the bill in 2012 had expressed support for a similar measure in 2000, and many would have voted for it “were it not for enormous pressure applied” by Mitch McConnell.

The Herald Leader called out McConnell’s “hypocrisy” on the issue, and it is obviously that. But it’s also just a savvy politician reacting rationally to a changing electoral landscape. Our system of public campaign financing is in tatters, the floodgates of private money are wide open and the big donors lean heavily toward his party.

Conservatives know how powerful disclosure rules can be. Donors don’t want to be linked to groups pushing unpopular causes. They fear becoming entangled with divisive social issues – they want to support politicians who will cut their taxes, roll back regulations and oppose minimum wage hikes, but often those same politicians hold views on things like women’s rights or equality for gays and lesbians that fall embarrassingly outside today’s mainstream.

The prospect of having their names and brands attached to their political activism scares a lot of deep-pocketed donors. In a rare interview with Forbes, Charles Koch defended the lengths to which he and his brother David go to hide the names of their fellow funders and obscure their own political activities through a network of murky front groups as a necessary evil. “We get death threats, threats to blow up our facilities, kill our people,” he said. “So long as we’re in a society like that, where the president attacks us and we get threats from people in Congress, and this is pushed out and becomes part of the culture… then why force people to disclose?”

The hyperbole is consistent with billionaire Tom Perkins calling modestly populist rhetoric a precursor to a “progressive Krystallnacht.” But strip away the melodrama, and what Koch is really saying is that he and his brother and other wealthy donors are entitled to use their fortunes to shape our political discourse without facing any criticism from their fellow citizens. And that’s a “right” you won’t find in any constitution.

As our colleague John Light points out, the influence of money in politics controls all other issues – the interests of large-dollar donors usually trump the popular will. A constitutional amendment explicitly authorizing Congress to regulate political spending is a great idea, but an exceptionally tough lift. And with the court’s current makeup, even the few remaining hard limits on political spending are in danger.

Disclosure is the only avenue they’ve left open to us, and if we seize it with enough energy — if we use it as leverage to get some real transparency in our elections — then we might just find a silver lining to the dark clouds that McCutcheon and Citizens United represent.

Joshua Holland is a senior digital producer for He’s the author of The Fifteen Biggest Lies About the Economy (and Everything Else the Right Doesn’t Want You to Know about Taxes, Jobs and Corporate America) (Wiley: 2010), and host of Politics and Reality Radio. Follow him on Twitter or drop him an email at hollandj [at] moyersmedia [dot] com.
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  • Joan Harris

    Reid and Durbin are taking on the Koch Bros. It really is no secret anymore that the Koch Bros. are major doners serving the wealthy one percent’s agenda. That is a good start in the cleansing powers of sunlight!

  • fmendoza


  • Anonymous

    There is nothing to safeguard, we lost our democracy years ago and most Americans do not want it back. They just want to guzzle beer in front of the TV.

  • Anonymous

    The problem is that with the two-party monopoly you can only vote out one corrupt official by electing another.

  • Jenah Danen

    I agree with this article. Who’s starting the groundswell?

  • William Donelson

    It’s already too late. Cheney bankrupting the USA (via obscene tax breaks for the rich AND the illegal war in Iraq) crippled government function and impoverised three generations, plus murdered 150,000+ human beings.

  • Anonymous

    How does George Soros feel about sunlight?

  • Joan Harris

    More importantly, how do Republican senators feel about George Soros.

  • Anonymous

    Probably about the same way Reid and Durbin feel about the Koch brothers, I’d expect. Why?

  • Joan Harris

    Some might think the wealth of liberals could even the playing field. Only one person, one vote will protect our democracy though.

  • Anonymous

    My only point is the demonization of the Koch brothers is hypocritical, particularly in the case of Harry Reid given his relationship with Tom Steyer. This decision didn’t change the cap on what could be donated to an individual candidate. It removed limits on the total amount that can be given to multiple candidates. What we need is sunlight and transparency. Get all these donors out in the open…oh, and don’t hound them out of their jobs if you don’t like what causes they support.

  • Joan Harris

    Citizens United decision is the real threat to our democracy. I have no sympathy for the wealthy as they try to create a country in their own image. Yes, we need sunlight and transparency.

  • Anonymous

    I don’t fear Citizens United. There’s plenty of money on both sides of the aisle. Transparency and sunlight are what’s essential.

  • Joan Harris

    I don’t fear Citizens united; I am appalled by subtle ways it opens the door for conservatives to alter the rights of, well myself as a woman or rights of minorities…I am watching this play out with hope.

  • Anonymous

    All it does is open the same doors for everyone, left and right. You do know that this decision enables labor unions and individuals (Bloomberg comes to mind) to do the same thing?

  • Joan Harris

    There is something wrong with the wealthy left and the wealthy right determining our destiny. The grassroots movement has been relevant in the past and is alive and well.

  • Anonymous

    They don’t determine my vote. And grass roots are alive and well on both sides too. Here’s the thing: money is spent on politicians because they have power. Limiting donations will just drive money underground and out of sight. It won’t go away. Better to have it out in the open. Second, if you want politicians to stop selling favors, the best way is to take away their inventory. Ponder that.

  • Joan Harris

    You have been influenced and don’t know it. There will always be bribery and corruption in politics. How would you do away with it?

  • Anonymous

    If I don’t know it, how would you? 😉 And as long as there is power and influence to sell, you won’t eliminate corruption. The way to reduce it, however, is to reduce the amount of centralized power and devolve it back to the states (as per my comment above)…i.e., you reduce the inventory of what they have to sell.

  • Anonymous

    Blame all you like on whatever party you choose and for any and all agendas all these special interest groups may advocate for but when you connect all the dots they will lead to the root of the primary responsible individual. Not surprisingly it is you, me, we the people. We (you,me) dutifully elect the same glib, professional, politicians regardless of their continued broken promises of “representing the people, I will work across the aisle, I do not work for any special interest group, I will take care of you, etc.”. The Pied Pipers blow their horns and we follow them over the cliff without question. How sad! All the money spent on any politician by any special interest group should raise a RED flag. Apparently we have been conditioned by all that money to follow that money into the ballot both and place our X next to the money guy/gal. The most popular reason heard is “She/He must be the best. Look at all the money she/he has behind her/him”. I (you) have a brain and can still think for myself. (No government program is in effect denying that ability, is there?) We are the only ones that can stop all this propaganda about unlimited funding of politicians. Vet the candidates! Ask the questions and demand truthful answers that you understand. The do have candidate forums, do they not? Demand to be heard. If you can not pose a question, believe your instinct that you will not be represented by that candidate. Where are they getting their campaign funds from and how will that determine their political agenda? It is time to THINK FOR YOURSELF!!! If a candidate can not or is going to be unable to uphold the constitution and his oath of office, he does not warrant the office he/she seek. We can not deter entirely special interest groups or money financing candidates. We can limit the amounts, however, by instituting TERM LIMITS on all elected and appointed offices. We must have representation that will restore this country to the stature we all can be proud of. That can only happen if you (me) vote intelligently and not be controlled by the money. Control is all about the money.

  • willymack

    We need to demand the impeachment of the five crooks in the soupreme court.
    These demands need to go to the House, which does the impeaching.
    After they wipe their asses with our demands, we need a nationwide work stoppage for at least two weeks to show the crooks in congress we mean business.
    Think of it as a vacation and stock up on picnic supplies beforehand.

  • Joan Harris

    For better or worse, we have all been influenced. Corruption is part of politics whether it be federal, state or county. Oh for the cleansing power of sunlight. ☀️ 😉

  • Steve Cross

    I think that the combined effect of the Supreme Court decision will mean wall-to-wall negative ads in the media. About the only prayer we have is if it gets to be so much that people start to vote the other way from what the ads tell them just because they are sick of all the negative ads. But, that’s probably wishful thinking.

  • Timothy Hanser

    Seems like we now share more unequal freedoms in this nation of ours. The amount of right to Free Speech we have is now dependent upon our cash on hand! Thank the Supreme Court for creating even more inequality in the U.S.!

  • Jack Haesly

    Your count is off. The actual Iraq murders from all causes were well over a million for Iraq citizens alone.

  • Jed Grover

    Critical thinking ….. tell that to the herding elephants as their “lily white supreme leaders” assist in advancing the cause and the naïve donkeys set back wagging their tails!. Excellent read …

  • Jed Grover

    It is not democracy. Democracy cannot exist if ruled or manipulated by wealth.