At the cornerstone of every democracy is a free election. Elections are the conduits for the voice of the people. They are an opportunity to award power to those who represent the will of their constituents and to punish those who are ineffective. However, the promise of the free American election is jeopardized by the presence of money.
The 2016 presidential and congressional races combined for a cost of over $8 billion. In 2020, that number nearly doubled to over $16 billion. While these figures can be attributed to multiple sources, the contributions of a handful of elite groups and individuals to these massive fundraising hauls cannot be ignored.
The process of raising these staggering amounts of money requires time and energy. It’s a key contributor to why our election cycles feel so long and draining. During a typical election season, it’s estimated that a member of Congress will spend half of their time in office fundraising to run for reelection. With members of the House up for election every two years, much of their time is occupied with campaigning rather than governing.
Our system itself contributes to a drawn-out process. Although primaries delegate power to the general public to pick their candidates, they also force the campaign timeline forward. This results in campaigns that are launched months and sometimes even years ahead of the general election — all so that enough money can be raised to compete with other candidates.
To see who our elections benefit, all you have to do is follow the money. Our finance-driven elections facilitate big corporations’ agendas. They keep power concentrated in the hands of the wealthy. And they give people the illusion of choice while establishing a series of quid pro quos between the interests of the powerful and our elected officials.
How We Got Here
The expensive price tag accompanying our elections is a rather recent phenomenon. Nothing in the Constitution requires candidates to raise preposterous amounts of money or states to hold primaries. Besides its ultimate outcome of selecting a president, the first U.S. election in 1789 resembles nothing like the one being held this November. In fact, the concept of fundraising would be entirely foreign to the candidates in that first election, as they financed their campaigns themselves.
The beginning of campaign fundraising can be traced as early as the Jacksonian era, but the big-dollar campaigns we see today did not emerge until 2010, in the wake of the Supreme Court’s decision in Citizens United v. Federal Election Commission. In a 5-4 ruling, the Court declared money to be a form of constitutionally-protected speech. This monumental ruling allowed powerful interest groups, businesses, and megadonors alike to leverage their money to make political statements, all under the protection of the First Amendment.
The most important institution to emerge from this ruling is the super political action committee, more commonly referred to as the “super PAC.” These specialized fundraising bodies can receive unlimited funds from individuals, corporations, and organizations, with the sole condition that they don’t coordinate expenditures with a candidate or candidate’s committee.
The Citizens United majority also held that corporations are entitled to the same free speech rights as individuals, and as a result, struck down the Progressive-era limit on corporate independent expenditures. This opened the door for large corporations to funnel money into campaigns to advance their particular interests and drown out smaller voices. Importantly, this free speech protection also extends to corporations owned in part by foreign nationals, who are otherwise prohibited by the FEC to invest or interfere in elections.
The decisions rendered in Citizens United v. FEC and subsequent cases SpeechNow v. FEC, and American Tradition Partnership, Inc. v. Bullock, ensure that the influence of money over our politics is here to stay. The Court has repeatedly shown that wealthy corporations and individuals are not only allowed to buy their way into power, but further, it’s their guaranteed constitutional right.
What’s the Problem?
Unfortunately, this constitutional right is one that fundamentally excludes the majority of Americans on the basis of wealth, leaving many Americans feeling alienated about the role of money in politics. A 2023 survey by the Pew Research Center found the majority of Americans believe money in politics contributes to a corrupt political system, and 72% of U.S. adults support limits on election spending.
In an interview with the HPR, Pratik Patel, a concerned and undecided college student in Georgia echoed this sentiment. He lamented, “You don’t want to throw your money at stuff like political campaigns when super-rich people could do all the work in terms of funding. Your $10 is not going to make a huge difference.” Patel’s reasons for not donating reflect widespread disillusionment among Americans driven by the perceived power of unlimited contributions from the wealthy.
So with voters broadly unsupportive of the status quo, why do we still let big money in politics run rampant?
From a legal perspective, precedent prevents any immediate action from being taken. While decisions can be overturned by the Supreme Court, this rarely happens unless the decision becomes “unworkable” or when the underlying situation and context have changed drastically. When the Court identified political spending as a form of speech, they made it all but impossible for the decision to be overturned in the near term — to do so would require a constitutional amendment, a major shift in the ideological balance of the Court, or a substantial change in the foundational facts of the case.
These decisions leave few barriers to the use of money in politics except in cases of corruption. The thing is, wealthy individuals and corporations do not have to be explicitly corrupt to negatively influence American politics.
Harvard Law School Professor Nicholas Stephanopoulos emphasizes this point. In an interview with the HPR, he explained, “Another harm of money in politics is that it can skew public policy away from what voters want and toward what donors and spenders want. And that’s not corruption, but I think it’s a really big problem if you’re distorting the desires of the people in favor of the preferences of big money.”
The courts aren’t the only ones hogtying our campaign environment. The limited power of the U.S.’s campaign finance regulatory body, the Federal Election Commission, makes the enforcement of what few rules exist difficult. The FEC oversees campaigns for the U.S. House, Senate, Presidency, and Vice Presidency. It also has the power to launch investigations into violations of campaign law, including if a super PAC is coordinating with candidates regarding expenditures.
However, this power to launch investigations is limited by the structure of the FEC itself. With six commissioners, and no more than three from the same political party, decisions are often split along partisan lines. Furthermore, initiating an investigation requires the approval of at least four commissioners. This results in many complaints of wrongdoing never being investigated because of the lack of bipartisan support for action.
This challenge is acknowledged by the commissioners themselves. In an interview with the HPR, Vice Chair of the FEC Ellen Weintraub stated, “Some of the commissioners have a more deregulatory view than I do. I think there are a number of cases where the agency could have taken stronger positions to enforce the law and we didn’t have the votes to do it.”
When asked what the FEC can do in terms of regulating super PACs, Weintraub pointed back to Citizens United. “We don’t outrank the Supreme Court. We have to follow Supreme Court doctrine and they’ve been pretty intolerant of limits on political fundraising and spending.”
With a weak FEC and a strong Supreme Court mandate, the status quo appears firmly cemented in place. It’s a reality that elevates the influence of elite groups, while drowning out the voices of the general public, guaranteeing a privileged few more “freedom” than their fellow citizens. Can we really call our elections free and fair if everyone does not have equal access to a Constitutional right?
Reforming our Campaign System
In an ideal system, if money equals speech, then the opportunity to spend it should be dispersed equally among all who wish to participate in the political system. The concept of publicly funded elections is nothing new. Currently, the FEC has rules in place that allow for the matching of private contributions with public taxpayer funds. In fact, Americans have the option of checking the “Presidential Election Campaign” box on their tax returns each year to contribute $3 to the Presidential Election Campaign Fund.
Created in 1974 after the Watergate scandal, the PECF was a response to concerns of special interest groups exercising outsized influence over our elections. Yet, it has fallen into disuse; over $400 million sits unused in the fund and a whopping $0 of publicly funded money went to presidential candidates during the 2020 cycle.
Why? $400 million is relatively minuscule compared to the billions of dollars that candidates can receive from private sources. Funds taken from the PECF are subject to limitations, which would handicap a candidate against an opponent who chose not to take the funds.
Are publicly funded elections a relic of the past? According to Professor Stephanopoulos, public funding just needs a makeover. “I think that public financing is a great constitutional policy that’s still available. If the federal government made available $20 billion per election cycle, almost no candidate would bother with private funding when there was that much public funding.”
While that much taxpayer money might seem like a lot, it’s an amount that represents the voices of all of America. Compared to the $1.7 trillion discretionary spending budget, the U.S. can afford to dedicate a relatively small percentage to ensuring our elections are free and fair.
Publicly funding our elections also reduces the need for long elections: with guaranteed campaign money already in the bank, candidates no longer have to dedicate months toward fundraising. That means our elected officials seeking reelection can dedicate more of their time to actual governing and less to filling their campaigns’ coffers.
Still, public funding alone is not a cure-all solution.. As long as Citizens United is in place, there is no guaranteeing that elites and interest groups will not simply outbid the public every time. Real change would require overturning this precedent, and returning to a time before Citizens United, before billions of dollars were injected into each election cycle, and before super PACs dominated our campaigns.
Unfortunately, this outcome is unlikely to occur in the near future. Precedent is difficult to reverse for many reasons. It is seen as an authority meant to guide similar cases. It helps create efficiency and consistency in close scenarios. And, in this case, precedent continues to give a wealthy subset of the population the influence they crave. Given these factors, and the politicized nature of the present Court, a reversal of Citizens United remains more hypothetical than feasible.
A more realistic option would be increasing the FEC’s regulatory authority. One reform that Vice Chair Weintraub supports is changing how investigations are launched. “One of these reform proposals that I would support would flip the presumption such that if the nonpartisan staff recommended an investigation, it would take four votes to stop that investigation, rather than to start that investigation.”
Changing the power of the FEC can help return control to the citizens by having tips on unlawful behavior be taken seriously. At the end of the day, people simply want their voices acknowledged and represented in their political environment.
Whether it’s increasing the authority of the federal regulatory arm, pushing the Court to overturn a decade of precedent, or constructing a whole new financing system built around public funding, change must be brought to U.S. elections. If money in politics is merely a form of speech, all Americans should have this right honored. If money in politics means our elected officials spend their time in office fundraising instead of governing, reforms are needed to hold representatives accountable. And if money in politics is preventing a free and fair election, we need decisive action to protect the core of our democracy.
