By Michael Dorf
One already-standard account of the midterm election results points to the role of largely unlimited anonymous cash in elections following the Supreme Court's invalidation of various provisions of federal campaign finance law over the last several years. An election night segment on The Daily Show in which "money" celebrated its huge victory over "ideas" nicely captures the trope
I think the Court's campaign finance cases are too restrictive in at least two ways: They employ a too-narrow conception of "corruption"; and they unrealistically assume a great difference between the impact of direct campaign contributions and "independent" expenditures. That said, I want to register some skepticism about both the scope of specifically campaign money's influence and the ability of campaign finance regulation to address the broader corrupting influence of money on politics without infringing even a more modest view of free speech.
Let's begin with the obvious. The main difference between, on the one hand, 2008 and 2012, and on the other hand, 2010 and 2014, was the demographic makeup of the electorate. Younger voters and minority voters turned out in larger proportions in the Presidential years than in the midterm years, while turnout for older and whiter voters dropped much less from the Presidential to the midterm years. A flood of money and GOP efforts to disenfranchise the core of the Democratic constituency probably helped the Republicans at the margins, but the composition of the electorate--in combination with a long-term trend of a two-term President's party losing badly in the midterms in his second term--were pretty clearly the dominant factors.
Meanwhile, the Wall Street paymasters of the Republican Party have less influence over policy than one might initially think. Let's consider four issues.
1) Immigration. At least since the beginning of the George W. Bush Presidency, comprehensive immigration reform has been a priority of the business community, in order to ensure steady legal access to cheap labor. If the money behind the GOP bought influence on this issue, immigration reform would have passed easily years ago, because the self-interested right would have joined forces with the humanitarian left. But it didn't happen because bags of money were insufficient to overcome nativist ideologically driven anti-immigrant sentiment among the conservative base and thus the people who represent them in Congress.
2) Fiscal Brinksmanship. On multiple occasions between mid-2011 and early this year, the Tea Party wing of the Republican Party came within hours or days of crashing the global economy by attempting to use the debt ceiling as leverage for other policy goals (such as the repeal of the Affordable Care Act). This brinksmanship was viewed with horror by Wall Street bankers, who understood that failure to pay existing obligations would do enormous damage to the financial sector and the real economy, even if they shared some or all of the long-term goal of shrinking the federal budget. It's true that each time the Wall Street wing eventually won, but only just barely, at the last minute, and mostly because of support from Democrats. In a world in which money really talks, the Tea Partiers would not have been able to push the issue nearly as far as they did.
Now consider two issues where the positions of the moneyed interests are very much in line with the the GOP party line.
3) Taxes. Rich people care an enormous amount about keeping taxes low. The GOP represents their interests very effectively.
4) Regulation. Groups like the (national) Chamber of Commerce and other powerful business interests fight all sorts of regulation. Here too the GOP voices and votes their concerns very effectively.
Looking over that list, one might think that campaign money is batting .500, which is pretty darn good. But I think the appearance is deceptive. We need to ask why the people and corporations with money have an easier time getting Republicans to vote how they want on some issues than on other issues. And I think the answer is that the Republican Party stance on taxes and regulation is not simply (and not even mostly) a response to the influence of campaign money. I think that on these two issues the GOP base holds ideological commitments that are in synch with the agenda of the moneyed power brokers; conversely, the base's ideological commitments go the other way on immigration and, insofar as relevant to brinskmanship, fiscal issues. If that's right, then the campaign money isn't doing that much work.
Lest I be misunderstood, I should make clear that I am not saying that campaign money has no influence. It clearly has considerable influence. My point is simply that campaign money has a hard time buying political influence that runs contrary to strongly held ideological beliefs.
That raises the question of where those ideological beliefs themselves come from. Some come from largely outside politics. For example, many people hold views about abortion or gay rights that derive from--or at least are strongly influenced by--their religious views. Other ideological beliefs grow out of what we might call lifestyle or region. For example, rural voters tend to be more strongly in favor of gun rights than urban dwellers.
But ideology does not simply grow out of people's pre-political lives. Of course people can rationalize just about any belief in terms of their pre-existing views (e.g., global warming is a hoax because God promised Noah that there wouldn't be another flood; when Jesus said sell your possessions and give the money to the poor, he really meant that it was important to repeal the capital gains tax; whatever), but that does not provide a causal account of ideological beliefs. Those beliefs are formed in a complex environment that includes a great deal of general political speech and commercial advertising. The Koch brothers don't need to spend all that much during political campaigns to convince the GOP base to oppose taxes on the wealthy in large part because that base is constantly exposed to that message via FoxNews, right-wing talk radio, and other avenues.
Accordingly, although I think that the Supreme Court's campaign finance cases are mistaken in some fundamental ways, I think that even a much more permissive First Amendment regime would still leave enormous room for money to affect politics. That's because so much of the work done by money occurs outside of the campaign context, in circumstances in which just about everybody concedes that the First Amendment forbids substantial government restrictions. (I made an extended version of this point in a symposium article on Citizens United in 2011.)
To paraphrase John Roberts, the way to stop the influence of concentrated wealth on politics is to stop wealth from concentrating. I realize that's not a currently feasible political goal but if it were to become one, the relevant redistributive laws would pass constitutional muster even from the Roberts Court because such laws would not target speech at all; the political impact of a flatter income and wealth distribution would merely be a beneficial side effect of speech-neutral policies.