As a practical matter, campaign contributions (whether classified as “contributions” or “independent expenditures”) have more of an impact on a public official’s actions than an individual person casting a vote. For exactly this reason, the federal government has regulated federal elections for more than 100 years — with an emphasis on preventing for-profit corporate entities from undermining our electoral process. But just a few years ago in Citizens United v. FEC, the U.S. Supreme Court ignored precedent and, by creative judicial craftsmanship, struck down major portions of the Bipartisan Campaign Reform Act by deciding that corporations could not be restricted in their ability to make “independent expenditures” in elections.
Although the Supreme Court undermined much of Congress’ effort to preserve the integrity of our electoral process in Citizens United by striking down “independent expenditure” regulations, the Court upheld federal disclosure requirements, arguing that disclosure requirements facilitate voters’ understanding of electoral messages. As the Court said, “[D]isclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
But even in a post-Citizens United era when Super PACs dominate the airways during election season, some argue that there are still too many election regulations, including those at the state level. Along those lines, Sen. Glenn Grothman, R-West Bend, has introduced a bill in the Wisconsin Legislature that would weaken Wisconsin’s current campaign financial disclosure laws. I urge the Legislature to reject this proposal, which is at odds with the proud progressive tradition of this state — a tradition that stresses the value of transparency.
The Founders were, to say the least, skeptical of for-profit corporations because of the power they could possibly exert over democratic government. This explains why early Supreme Court cases construed a corporation’s constitutional rights narrowly. As an early case said, “A corporation is an artificial being, invisible, intangible and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.” Since then, the Supreme Court has rejected this line of reasoning and has held that corporations have constitutional rights.
Although the Supreme Court held that corporations have constitutional rights, the Court has also upheld federal laws (pre-Citizens United) that restrict corporations’ ability to make unlimited contributions to federal candidates (regardless of whether they are called “contributions” or “independent expenditures”). Arguably, this was a healthy compromise. Corporations had constitutional rights, but the government was allowed to restrict their spending on elections because the government had a compelling state interest in protecting the integrity of the electoral process.
This healthy compromise was eviscerated in Citizens United. The Supreme Court, ignoring the uncontroverted fact that polls show three-fourths of Americans think corporations have too much power, held that corporations could not be restricted in making independent expenditures during elections. Essentially, the Court ignored capture theory, i.e., the fact that for-profit corporations use their power to subordinate the wants of the electorate at-large in favor of the narrow goals of self-interested for-profit corporate entities. There are too many examples of capture theory in practice to name them in full here. Still, if you have the diligence to follow the corporate cash, you will find that corporate interests have prevented the federal government from implementing programs favored by a majority of citizens, such as a single-payer health care system.
In a post-Citizens United landscape, where neither Congress nor state legislatures may restrict the electoral independent expenditures of for-profit corporations, the only remaining regulatory tools we have to ensure that our elections retain some of their integrity are campaign contribution limits and campaign disclosure requirements. Yet, Sen. Grothman has introduced a bill that would weaken Wisconsin’s campaign disclosure requirements — one of the last tools we have to protect the integrity of our public elections.
Grothman’s proposal would only require donors who engage in campaign contributions of $500 or more in an election cycle to report their contributions, whereas donors who make campaign contributions of $100 or more each year are required to report their contributions currently. Additionally, Grothman’s proposal would remove the requirement for donors to report who their employer is, instead of just requiring donors to report their occupation.
This proposal would make Wisconsin elections less transparent, in direct confrontation with our proud progressive history and tradition. As Mike McCabe, executive director of the Wisconsin Democracy Campaign, said, “This is an incredibly extreme bill. It would blind the public to the financial interests of most campaign donors, gutting Wisconsin’s campaign financial disclosure laws.” McCabe is emphatically correct. According to McCabe, if this proposal had been law when WDC started its contribution disclosure database, the database would be 96 percent smaller. This means that citizens would have 96 percent less information on who directly influences elections through campaign contributions, preventing voters from “[making] informed decisions and [giving] proper weight to different speakers and messages.”
It is true that Citizens United has opened the floodgates of corporate spending into federal elections to the detriment of the American public. Regardless, campaign contribution disclosure requirements (which are still constitutional) remain an important regulatory device to protect the integrity of elections by keeping elections transparent. Grothman’s proposal would undermine the transparency of future Wisconsin elections by weakening Wisconsin’s campaign disclosure requirements. In evaluating Grothman’s proposal, the Legislature should keep in mind what Thomas Jefferson once stated: “Information is the currency of democracy.”
Aaron Loudenslager ([email protected]) is a second year law student.
