Helping citizens unite in post-Citizens United America

What would happen if tens of thousands of small donors joined forces to hold politicians accountable in the same way wealthy donors, special interest groups, and corporations have done for years? We found out this month when Maine activist Ady Barkan partnered with Maine People’s Alliance and Mainers for Accountable Leadership to send a simple yet powerful message to Senator Collins: keep the promise you made to “oppose a nominee who demonstrated hostility to Roe v. Wade” or we’ll fund your opponent in 2020. Using the conditional fundraising platform of Crowdpac (which we founded), they started a campaign that let people pledge to give money to her still unknown Democrat challenger, donations which will only be charged if Collins votes “yes” on Kavanaugh’s nomination. So far that campaign has raised over $1.5 million in pledges from more than 50,000 donors, exceeding Collins’ current cash-on-hand.

The crowdfunding campaign got Collins’ attention. In an interview with Newsmax, she commented that she considers the campaign “to be the equivalent of an attempt to bribe me to vote against Judge Kavanaugh.” Senators Cruz, Hatch, and Cornyn all went to Twitter to back Collins’ on her claim that the crowdfunding campaign might amount to bribery.{mosads}

The public backlash was swift and overwhelming. Commenters were quick to decry the double standard of accusing small donors of attempting to ‘bribe’ Senator Collins when she had accepted millions of dollars from wealthy donors and special interests. As one astute commenter quipped, when the Supreme Court decided Citizens United, “they didn’t expect citizens would actually unite.”

Several prominent legal scholars agreed. Rick Hasen wrote in his column at Slate that bribery claims were without “any legal merit whatsoever” and that “this behavior does not come close to violating the federal bribery statute.” Lawrence Tribe, a constitutional law scholar at Harvard, concurred, writing that Collins was “clearly wrong to call this legitimate exercise of 1st Amendment rights an unlawful ‘threat’ or ‘bribe.’” Senator Grassley, chair of the Senate Judiciary Committee, seemed to agree. When asked by Neil Cavuto about the crowdfunding effort, Grassley responded, “Well, of course, that’s politics in America. Both the left and the right do that.” Judge Napolitano, the senior legal analyst at Fox News, was more direct. “Legally it’s weird,” he told Fox and Friends, “but it’s not a crime.”

It is no secret that this type of pressure is regularly applied by well-connected donors with deep pockets. We have seen time and time again how effective threats of cutting off funding can be in getting the attention of politicians. This was on full display after the Republican tax reform bill stalled last year. Public support for the tax plan was lacking, with voters believing – correctly – that the tax cuts would primarily benefit the rich. Despite the tax bill’s dismal polling numbers, top Republican donors demanded action and threatened to withhold contributions if their agenda did not move forward. This so-called “donor revolt” spurred Republicans into action. Lindsey Graham warned that “financial contributions will stop” if the tax bill did not pass. It was clear that some top Republican donors felt entitled to the tax cuts they were promised. As one prominent Republican donor complained to an audience of Republican senators: “When you’re in a business and you tell your stakeholders you’re going to build a building or something, you have to follow through.”

The power disparity between big versus small donors is apparent in the treatment they receive from politicians. In return for their financial support, big donors command the attention, time, and respect of politicians; small donors get an inbox overflowing with unsolicited fundraising emails.

Crowdpac’s conditional fundraising platform gives small donors the ability to hold politicians accountable in the same way big donors have been doing for years. Wealthy donors can communicate precisely what it is they want and what the consequences will be if politicians fail to deliver. Small donors have, until now, lacked the ability to pool their resources together to make specific demands or a credible commitment mechanism to hold politicians accountable for broken promises.

If Republicans in Congress move forward on a second round of cut taxes, small donors will be ready to hold them to their promises of fiscal responsibility. If the Mueller investigation concludes that President Trump has conspired with and has been compromised by a foreign power and Republicans in Congress refuse to act, small donors can be there to remind them of the oath they took to defend the Constitution. And if Democrats take back the House in 2018, small donors can hold them accountable for promises they made on the campaign trail.

Citizens United is the most unpopular Supreme Court decision in living memory. According to a 2015 New York Times poll, supermajorities from both parties share in the belief that money has too much influence on our politics and voice support for campaign finance reform to limit the influence of wealthy donors. The campaign finance is a rare issue that unites both parties. Taking a stand against the corrupting influence of big money wasn’t just the rocket fuel that propelled Bernie Sanders’ insurgency. Lest we forget, during the presidential primaries Donald Trump spoke candidly about his past use of campaign contributions to secure special treatment and favors from politicians, accused his opponents of being bought and sold by donors, and decried the campaign finance system as fundamentally corrupt.

We at Crowdpac are among the 78 percent of Americans who want to see Citizens United overturned. We are well aware that if Crowdpac’s conditional fundraising platform is challenged in court, it would likely force the courts to revisit the narrow conception of corruption that has allowed big money to dominate our politics. We would welcome a ruling that conditional crowdfunding campaigns are unconstitutional because that would mean money is, in fact, not a form of speech and that Super PACs and dark money are not protected by the First Amendment. To channel President Obama, a prominent critic of Citizens United: How hard can that be, to say that money is money?

The alternative would be to rule that when average citizens use money in this way to pressure politicians it is corrupt, but when billionaires and corporations do it they are merely exercising their First Amendment rights. Such a ruling would be disastrously unpopular and would do deep and lasting damage to the Court’s legitimacy.

Ultimately, we believe the health of our democracy would be best served if money could not be used to pressure politicians. Even if we believe this type of pressure ought to be illegal, that does not change the reality that it is currently within the law. We see no reason to deny small donors the tools they need to fight back.

And so we stand united with 50,000 and counting of our fellow citizens—in equal parts defiance and hopeful anticipation—to ask our leaders in Washington: What are you going to do about it?

Adam Bonica is an Assistant Professor of Political Science at Stanford University and co-founder at Crowdpac. Gisel Kordestani is co-founder and CEO at Crowdpac. Crowdpac is a certified B-corp with a mission to help more people participate in the political process through running for office and funding candidates and causes they believe in.