By Stephen Spaulding
May 18, 2023, 9:20 AM

Our north star must be a democracy that lives up to its promise:  one where everyone participates and every voice is heard.  At its core, the freedom to vote is political speech.  But voter suppression, gerrymandering, and the undue influence of big money in politics form a trifecta that silences voters and attacks that core freedom.  This erodes the public’s confidence and trust in the democratic system itself, which has been at record lows for the last two decades. To strengthen this trust and foster a more inclusive democracy, Congress must act to pass solutions that will empower more people to participate in our democracy.  It should start by passing the Freedom to Vote Act¹S. 2747, 117th Cong. (2021). and the John R. Lewis Voting Rights Advancement Act,[/mfn]H.R. 4, 117th Cong. (2021).[/mfn] which a majority of Congress voted for last Congress, only to be blocked by a Republican filibuster.

That is the message I delivered while testifying at a recent congressional hearing titled “American Confidence in Elections: Protecting Political Speech.”  It was one of a series of hearings that the House Administration Committee recently held in anticipation of reintroducing the American Confidence in Elections (“ACE”) Act.²H.R. 8528, 117th Cong. (2021).  The ACE Act is an omnibus elections bill led by House Republicans that, if made law, would make it harder to vote and usher more secret money into our elections.

Much of the May 11 hearing focused on the role of money in politics.  The staggering sums washing over our elections come from a tiny and highly unrepresentative segment of society that drowns out the voices and priorities of everyday Americans.³See generally Benjamin I. Page & Martin Gilens, Democracy in America? What Has Gone Wrong and What We Can Do About It (2020).  As I shared in my testimony, just 0.54 percent of Americans contributed more than two hundred dollars to federal candidates, PACs, and political parties, which accounted for 74.55 percent of all contributions.  Another analysis from the Brennan Center for Justice found that just one hundred people pumped 60 percent more money into American elections than millions of small donors combined.  People understand that their voices are going unheard and overwhelmingly support improving our campaign finance laws to reduce the influence that money has in our politics.

A large problem of big money dominating our campaign finance systems is that a significant percentage of outside spending comes from secret sources.  According to the nonpartisan OpenSecrets, “[a]t least $3 out of every $10 in outside spending reported to the [Federal Election Commission] since Citizens United can be traced to dark money groups.” This contravenes the Supreme Court’s assumption in Citizens United that disclosure and transparency in campaign spending would be a remedy for corruption and the appearance of corruption.  In a portion of the opinion that had the support of eight Justices, Justice Kennedy wrote that disclosure “enables the electorate to make informed decisions and give proper weight to different speakers and messages,” and provides citizens the opportunity to “see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”⁴Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 370–71 (2010).

I shared with the Committee a recent example of how secret money in elections can lead to corrupt outcomes.  Earlier this year, a former Speaker of the Ohio House of Representatives was convicted in a federal racketeering trial that involved $60 million in bribes—including secret campaign spending by a power company—to obtain part of a $1.3 billion nuclear power plant bailout.  Shielded from public scrutiny, those involved in the scheme steered the power company’s money through a complex web of dark money groups and consultants, including one controlled by the former Ohio Speaker himself.  The power company admitted in a deferred prosecution agreement that it used these dark money groups “to conceal payments for the benefit of public officials and in return for official action.”  The money was partly spent to elect the Speaker and allies in the Ohio House who, once elected, would support the power plant bailout.  But because of the anonymity and secrecy of the spending, Ohioans could not “follow the money” and root out the corruption at the heart of the scandal.

Congress has solutions it can pursue to shine a light on campaign spending and amplify every voice in our democracy.  Under Democratic majorities, the House of Representatives passed the DISCLOSE Act⁵See, e.g., H.R. 1118, 118th Cong. (2023). multiple times in the last few years as part of omnibus legislation like the For the People Act⁶H.R. 1, 117th Cong. (2021). and the Freedom to Vote:  John R. Lewis Act.⁷H.R. 5746, 117th Cong. (2021).  The DISCLOSE Act would require groups that spend $10,000 or more on campaign-related expenditures to report their donors of $10,000 or more so that voters can follow-the-money.  The bill is carefully crafted to allow at least two exemptions from disclosure:  first, if groups only pay for campaign-related disbursements from a specific bank account, only donors to that bank account would be disclosed; and second, any donor could prohibit their contribution from being used to fund campaign-related expenditures, and if so, then such donors would not need to be disclosed.  There are also protections in the bill to guard any donors from harassment.

Disclosure alone, as essential as it is to a healthy democracy, is inadequate to ensure that everyone has the chance to participate and make their voices heard.  The Freedom to Vote: John R. Lewis Act also creates an alternative way to fund political campaigns based on successful matching programs at the state and local levels.  Voluntary small donor-based systems empower more people to participate in the political process by amplifying their small contributions and ensuring that candidates are less reliant on big campaign contributions from wealthy donors.  These systems break down barriers to participation and open up new pathways for people to seek office, including people of color and women, who are significantly underrepresented in the halls of power.  These small donor matching programs also give officeholders more time to work on their policy priorities and free them from the constant pressure to raise money and the perception that they are beholden to major donors.

The anticipated reintroduction of the House Republicans’ ACE Act, however, would be a notable setback for disclosure.  Were it to become law, it would invite corruption and undermine confidence in elections.  It would repeal a provision of the Federal Election Campaign Act in its entirety that requires certain spenders—including groups that spend money on elections but are not required to register with the Federal Election Commission as political committees—to disclose their donors.  It would even restrict the ability of the Securities and Exchange Commission to issue any rules that would bring more transparency to corporate political spending.  This contravenes Justice Kennedy’s Citizens United opinion, where he wrote about shareholders’ ability to evaluate how corporations advance their interests.⁸Citizens United, 558 U.S. at 361–62, 370–71.

Ultimately, I shared with the Committee that we must do more to ensure that our democracy is representative, reflective, and responsive to the people it serves.  Protecting the voices of every American in the political process will strengthen confidence in elections and vindicate the most fundamental freedom that we have:  the power of one person, one vote.

References:

• 1
  S. 2747, 117th Cong. (2021).
• 2
  H.R. 8528, 117th Cong. (2021).
• 3
  See generally Benjamin I. Page & Martin Gilens, Democracy in America? What Has Gone Wrong and What We Can Do About It (2020).
• 4
  Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 370–71 (2010).
• 5
  See, e.g., H.R. 1118, 118th Cong. (2023).
• 6
  H.R. 1, 117th Cong. (2021).
• 7
  H.R. 5746, 117th Cong. (2021).
• 8
  Citizens United, 558 U.S. at 361–62, 370–71.