In the five years since the US Supreme Court issued its ruling in Citizens United v. FEC, it is clear that the scale of money in politics is out of reach for most Americans.
I was reminded of this fact recently while speaking at the national convention of the Association of American Law Schools (AALS) where former FEC Commissioner Bradley Smith argued that there isn’t a problem of secret money in elections because only 5 percent of the spending in federal elections comes from an untraceable source.
His math is correct in a narrow sense, but by disregarding the numerator and denominator, it’s easy to lose sight of the true scale of dark money. Prof. Smith calculated his 5 percent figure from the 2012 election cycle where approximately $300 million of the $6 billion in spending was from anonymous sources.
One could also quibble that his numerator is artificially low because it doesn’t include dark money spending that isn’t reported to the FEC or that a more informative comparison is between independent spending that is fully transparent and independent spending that is dark. By that measure independent spending in 2012 was 31 percent dark, not 5 percent.
Either way we’re talking about hundreds of millions of dollars. In the past three federal elections since Citizens United there is well over half a billion ($605 million!) in dark money. That is anything, but negligible. (If this bothers you as much as it does me, the FEC is taking public comments on dark money until January 15.)
Another way of conceptualizing the scale of money in American politics is thinking about what $10,000 means to the average American compared to what it means to a politician. Ten thousand dollars is less than a sixth of a maxed-out donation to a candidate for New York governor. For super PACs $10,000 is a rounding error, or the cost of a single plate of food at political fundraisers.
Meanwhile back in the real world, the median income for Americans is $53,000. In other words, a $10,000 contribution would cost a median income earner his or her entire salary for almost three months.
Average Americans are not funding our elections. As Harvard Professor Larry Lessig explains in his widely shared Ted Talk, this YouTube of a talk he gave at Stetson Law School, the major individuals driving political spending are the 1 percent of the 1 percent. In 2014, USA Today reported that a mere 42 individuals accounted for $200 million in Super PAC donations.
The cost of elections is simply out of reach for work-a-day Americans.
Two different ways to fund elections allow for the average American to have more of a voice in politics and are already working in cities and states across the country: low contribution limits and public financing.
In states like Montana with low contribution limits, like $170 for legislative candidates and $650 for gubernatorial candidates, even the middle class worker can make a contribution without getting drowned out by a billionaire’s five or six figure check. Each Montanan has a similar chance to give a modest amount.
Elsewhere cities and states provide public financing to encourage and amplify the voices of small donors. For example, in New York City, publicly financed candidates get a 6 to 1 match for contributions of $175 or less. This means candidates have an incentive to reach out to small donors, and they do. In 2013, two thirds of contributors gave $175 or less in New York City’s last election.
Sadly our Supreme Court is not helping the little guy or gal. This fact became crystal clear five years ago in Citizens United when the Court decided that corporations could spend an unlimited amount of money in federal elections. In the intervening years, the Court also held that parts of Arizona’s public financing system were unconstitutional in the Bennett case and that aggregate contribution limits to federal candidates had to be scrapped in the McCutcheon case.
The Court is looking out for the 1 percent of the 1 percent. But don’t let the percentages mislead you. They are spending millions — and too much of it is still undisclosed, which is why federal agencies like the FEC, SEC and IRS need to step up their game in bringing this spending out of the shadows.
Ciara Torres-Spelliscy is a Brennan Center Fellow, an Associate Professor of Law at Stetson University College of Law and the author of The Democracy We Left Behind in Greece and McCutcheon, 89 NYU Law Review 112 (2014).
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.