The Democratic primary to replace Jerry Nadler in Manhattan’s 12th Congressional District has produced a number of credible candidates. Yet it’s also an example of what is dangerously wrong with our political system: the hugely disproportionate impact of the super wealthy on our elections.
While there has been significant advertising during this campaign the major advertisers have not been the candidates themselves. Here is an example: In the ads attacking Alex Bores, the small print at the bottom says its sponsor is Leading for the Future PAC. This PAC is funded by key supporters of artificial intelligence who don’t like the fact that Bores was the sponsor of state legislation providing regulatory constraints around this emerging industry. And, to further disguise the motivation behind these ads, the AI issue isn’t even mentioned.
Then there are ads supporting Bores. We are told they are the work of still other super PACs: Jobs and Democracy PAC and You Can Push Back PAC. What this doesn’t tell voters is that these ads are being financed by those in the AI industry who favor sensible regulation of artificial intelligence.
And then we have the ads from Stand for New York PAC heaping praise on one of Bores’ key rivals, Micah Lasher. What we are not told is that these ads are funded by billionaire Mike Bloomberg in support of his former staff member.
The super wealthy and corporations using misleadingly named super PACs to influence elections has grown increasingly common and vast amounts of money are being spent. In the 2024 election cycle these super PACs spent more than $12 billion.
Two other recent examples are in Texas and Kentucky. In the former a crypto industry backed super PAC spent millions to defeat a crypto skeptical congressman. In Kentucky it was a pro-Israel super PAC which funded ads to defeat a sitting member of Congress.
What are these super PACs and how did we get here? They are entities that can take unlimited contributions and make unlimited expenditures on behalf of candidates so long as they act independently of the candidate.
While they need to file information about their donors with the Federal Election Commission, that obligation can prove to be illusory. Certain types of nonprofits and shell corporations contribute to these super PACs and those entities do not have to disclose the source of their funds. Moreover, the average person seeing a super PAC ad will not know what was in those filings, but will simply see the high-minded sounding name of the PAC.
And, as the Campaign Legal Center has reported, a combination of vague rules and lack of enforcement has led to super PACs often finding ways to circumvent the no coordination with the candidate requirement.
The ability of these super PACs to operate flows from U.S. Supreme Court decisions. The first was a decision in 1976 which held that spending money to influence voters was speech under the First Amendment. That case, Buckley vs. Valeo, however, did allow some limits on contributions directly to candidates because of the corruption risk they posed.
Then in its 2010 Citizens United decision the Supreme Court held that corporations were persons whose political giving was protected by the First Amendment. It also held that constraints on giving and spending to groups that operate independently of candidates violated the First Amendment. The floodgates for super PAC spending were thus opened and corporations and the super wealthy came marching in.
If we allow the super wealthy to dominate our elections we risk alienating ordinary citizens who may feel that their ability to influence policy through the electoral process is being compromised. The resulting threat to the stability of our democracy is real. So what can we do to address this threat?
First, we can make disclosure requirements more vigorous. Among other things, those nonprofits and shell corporations who do not disclose their donors should be required to do so and ads and campaign literature should be required to disclose the names of the principal donors behind the entities purportedly sponsoring them. Legislation has been introduced to require these disclosures.
Second, efforts should be made to convince the Supreme Court to allow limits on contributions to super PACs since they actually do present some of the same corruption risks as contributions to candidates. The effect of such limitations would prevent corporations and the super wealthy from hiding behind super PACs. Voters could then know, for example, that ads they are seeing are the work of Elon Musk rather than some benignly named entity.
Legislation is pending to impose a $5,000 limitation on contributions to super PACs. And a similar limitation imposed in Maine is now winding its way through the courts. Whether this Supreme Court, which in the redistricting world has sided against fair elections, will see its way to uphold these limits is far from certain.
Third, we can amend the Constitution to make clear that reasonable regulation of campaign contributions and spending is permissible. Doing so is difficult: an amendment must be first approved by a vote of two-thirds in the Senate and House or by a convention called by the application of two-thirds of the states. While either route will be challenging, we can only accomplish this through a visible public campaign to make adoption of such an amendment a priority for every House and Senate candidate.
The super wealthy will always be able to use their wealth to their advantage. But we cannot allow corporations and individuals possessing this wealth to undermine confidence in the fairness of our elections.
Davis is a former assistant Watergate special prosecutor and former assistant secretary of the treasury who just completed 17 years as a member of the NYC Campaign Finance Board.