Big money is transforming the American political system. It obviously affects the 2016 presidential race. But, this year, what started at the U.S. Supreme Court has reached Maine.
The Court blocked the Maine system, which paid matching funds to campaigns so they could compete with spending by candidates not relying on the Clean Elections payments. The Court then removed the cap on campaign contributions by corporations and groups like the NRA or the Sierra Club.
The result was fewer Maine candidates using public campaign finance. This year, Maine voters will face Question 1, a proposal to raise both the amount of public funding and the cap on what publicly funded candidates can spend.
Where will the new money come from? Some may come from increased individual contributions, but most should come from state funds. To find the extra money needed, the Legislature would consider increasing corporate taxes.
But there’s no guarantee about closing corporate loopholes. If no changes are adopted by the Legislature, publicly funded candidates could still spend up to the new higher limit using private contributions. In other words, the supposed revival of public funding could well do nothing more than raise the limit on what candidates can spend.
Much of the money supporting the supposed reform comes from big, out-of-state interests, just like last year’s bear-baiting referendum. Maine seems to be a tempting state for outsiders to try to influence, and they have been advertising early and often.
The Court has made it clear that private political contributions cannot be prevented, so we will not have purely publicly funded elections. But, in light of the increased political activity by big players, it is questionable if the Maine hybrid proposal would reduce the role of money.
The approach historically used both by Congress and the Legislature has been to limit the size of political contributions or even to ban corporate campaign spending. But the Court has gradually whittled away at such limits.
The 2010 Citizens United decision opened the floodgates to political contributions. In effect, anybody can contribute without limit, and the wealthiest people have done just that.
The New York Times reported that just 158 families have until now contributed almost half of the presidential campaign money. GOP candidates like Ted Cruz and Marco Rubio have survived to this point thanks to such gifts on their behalf.
Most major donors support Republicans. They assert that labor unions, traditional supporters of the Democrats, will also be able to spend freely. But the calculations have to be manipulated considerably if the unions are seen to be anywhere near the total of major private contributions.
When he was being confirmed by the U.S. Senate, Chief Justice John Roberts said a judge was an umpire, not making rules, only applying them. But, in Citizens United, he reportedly forced a second round of hearings just so he could have a slim 5-4 majority overrule a 1990 decision limiting corporate contributions and individual “independent” spending.
Does that affect Maine? By stimulating corporate and private political spending, the new system is raising the amounts spent on campaigns. And few doubt the Citizens United rule will be extended to those states having limits. The new proposal is being sold as a way of countering the effect of these changes.
Because it is a Supreme Court decision, Citizens United seems to be immune to further modification. If so, the Maine Clean Elections law and small contributions will become futile in a political system dominated by the wealthy.
Of course, one way to overrule the Citizens United decision would be to amend the Constitution. But that requires two-thirds of both houses of Congress and three-quarters of the states. That won’t happen.
Another way would be for an inventive lawyer to find a new way to challenge the court’s decision. Just as the Court overruled its earlier decision, it could later overrule Citizens United.
Eventually, a new president will appoint new justices to the Supreme Court to be confirmed by a new Senate. If voters don’t want a political system controlled by big money, they need to ask candidates where they stand on Citizens United, just as they question candidates about other key issues.
A major early test on campaign finance comes, somewhat surprisingly, in Maine. The intention of the current referendum may be to give publicly funded candidates a better chance to compete with candidates backed by big money, but it stands on a single, wobbly leg – closing corporate tax loopholes. So it could have a reverse effect, leading to more private, campaign funding.