Gage Skidmore

While rallying against a corrupt campaign finance system and a “rigged” economy on the campaign trail, Sen. Bernie Sanders (I-Vermont) raked in nearly 3.25 million individual campaign contributions in the run-up to his near tie with former Secretary of State Hillary Clinton during February 1 Iowa caucus, with still more pouring in after Sanders’s victory over her in the New Hampshire primary last night. During his victory speech, Sanders said his campaign has now raised more than 3.7 million individual contributions.

According to the reports filed with the Federal Election Commission (FEC), Sanders’s campaign raised a total of $75 million in 2015, and another $20 million in January — and all without a super PAC of his own. But will Sanders’s majority small-dollar donations be enough to overcome Clinton’s total of more than $163 million? Already her super PAC, Priorities USA Action, has reported raising $50 million in January amid an election cycle well on track to become the most expensive in history.

According to the Center for Responsive Politics, nearly $100 million cascaded into presidential super PACs in the last six months of 2015. FEC records show 29 individuals or groups gave $1 million or more, with those contributions tending to be concentrated among the wealthiest contributors. The largest donation in that timeframe came from billionaire George Soros, who shelled out $6 million to Clinton’s Priorities USA. It’s still $4 million less than the largest contribution this cycle, a $10 million torrent from billionaire Hank Greenberg to former Florida Gov. Jeb Bush’s super PAC, Right to Rise USA.

But Soros’s and Greenberg’s deluges pale in comparison to the $889 million budgeted for the 2016 election by the billionaire brothers Charles and David Koch, who head a vast conservative political network of outside spending groups. Their planned budget is more than the amount raised by candidates and super PACs so far this cycle, which totals close to $700 million.

The numbers thus far reflect an insidious campaign spending trend that began long before the Supreme Court’s 2010 Citizens United decision allowed individuals, corporations and unions to give unlimited amounts of cash to super PACs. Every election since 1998 has outspent the previous corresponding one: The 2012 presidential race cost more than $2.6 billion, the 2008 presidential race cost more than $1 billion, the 2004 presidential race cost more than $717.9 million, and so on.

“Almost invariably, the candidates who are winning the wealth primary are the ones who go on to win the election.”

This surging tide of reported contributions — plus the hidden current of undisclosed dark money flooding in beneath the surface from a few billionaires — is so thoroughly dominating the electoral process that it is effectively drowning out the value of the non-affluent vote, argues campaign finance activist John Bonifaz.

Bonifaz is co-founder and president of Free Speech For People, a group advocating for campaign finance reforms and a 28th Amendment to the U.S. Constitution that would not only overturn the Citizens United ruling but also establish that corporations are not people under the law. Bonifaz and author Jamin Raskin first articulated the idea of the “wealth primary” in the Yale Law & Policy Review in 1993, writing:

The “wealth primary” … sets up an economic gauntlet that, in every practical sense, prevents less affluent candidates — potential office seekers lacking both personal wealth and affluent backers — from competing for office. This system sharply reduces voter choice and falls with unequal weight on voters, as well as candidates, according to their economic status…. This effect denies huge numbers of people meaningful electoral choice and unlawfully degrades their influence on the political process as a whole.

In the 2016 primary, this process has sharpened so acutely that now only two major party presidential candidates have been able to compete without their own super PACs: Donald Trump, because he has billions of his own, and Sanders, whose funds have come mainly from small-dollar donations.

“That argument that we made in the 1990s … is even more relevant today, where you have a very small handful of wealthy individuals and families making huge tons of expenditures, where you have less than 1 percent of the population dominating the wealth primary system,” Bonifaz told Truthout. “And almost invariably, the candidates who are winning the wealth primary are the ones who go on to win the election.”

From “White Primary” to “Wealth Primary”

The courts’ constitutional interpretation of today’s campaign finance system has largely been within the context of the First Amendment, where courts have weighed the supposed free speech rights of billionaires against stemming the corrupting influence of private money in elections.

But Bonifaz and others argue that the equal protection clause of the 14th Amendment should be applied to any modern analysis of the campaign finance system. Such an analysis, advocates say, would reveal an exclusionary system that plays an integral role in elections and violates the equal protection rights of the non-affluent who are shut out of the process. Advocates point to two series’s of Supreme Court decisions bearing this out: one establishing that wealth discrimination in the political process is prohibited and the other determining that exclusionary processes found to be integral to elections are unconstitutional.

In the last of the line of cases on the issue, the Supreme Court determined that a “white primary” system in Texas was unconstitutional in its 1953 Terry v. Adams decision. Such white primaries were held throughout southern states during the Jim Crow era. They involved a pre-primary election process that disenfranchised people of color and were an integral part of getting elected.

Voters of color constitute 37 percent of the U.S. population but represent only 1 percent of campaign donors.

Thirteen years later, the Supreme Court overturned two previous decisions by striking down Virginia’s state election poll tax. Justice William Douglas wrote in the court’s Harper v. Virginia Board of Elections decision that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Later in 1972, in Bullock v. Carter, the court struck down a system of filing fees for candidates in Texas on equal protection grounds, ruling that economic status should not impede the ability to seek elected office.

“If you combine these two lines of cases, our argument [is] that today’s campaign finance system operates like a ‘wealth primary,'” Bonifaz said. “It’s as exclusionary as the white primaries of the past, as integral to getting elected and it is, in this case, violative of the equal protection clause based on wealth discrimination rather than racial discrimination, though clearly the wealth primary has a disproportionate impact on communities of color.”

That disproportionate impact is what makes the wealth primary of today translate to simply a new iteration of the white primary of the past. Voters of color constitute 37 percent of the U.S. population but represent only 1 percent of campaign donors and just 10 percent of those elected to office. The wealth primary’s racial discrimination is multiplied by the Supreme Court’s gutting of the Voting Rights Act in June 2013, which has allowed many southern states to institute discriminatory changes to their election laws, such as voter ID laws that disproportionately impact people of color, without federal approval.

Bonifaz’s organization is exploring the possibility of bringing a new legal challenge to the wealth primary system in a state court to test a state constitution’s commitment to its equal protection clause. But until a successful legal remedy to the current campaign finance system is achieved, the candidates on the campaign trail who aren’t billionaires themselves can either embrace the backing of the superrich, or like Sanders, try to jump the wealth primary system’s hurdles with small-dollar donations.

Sanders’s Small-Dollar Challenge

Sanders’s campaign represents one of the first meaningful confrontations of the wealth primary system in the post-Citizens United era.

The campaign reported that overall, nearly 1.3 million people made 3.25 million donations to Sanders’s presidential bid before the February 1 Iowa caucus. Then, in the 24 hours after the Iowa contest, Sanders’s aides reported his campaign raised another $3 million. The contributions are unprecedented, setting the record for this stage in a presidential campaign and far surpassing the milestone set by President Obama during his re-election campaign when he received about 2.2 million donations.

Plus, Obama only raised a third of his total 2012 contributions from small donations, relying about equally upon large donors and the very same super PAC now supporting Clinton: Priorities USA. Before Obama, presidential campaigns like former Vermont Gov. Howard Dean’s in 2003 and former Texas Rep. Ron Paul’s in 2008 raised nearly 40 percent of their cash through small internet donations but were unable to mount competitive bids.

Now, the Sanders campaign’s grassroots fundraising machine is going farther, oiled by the very people who are locked out of the wealth primary process: the non-affluent. The average donation to Sanders’s campaign is $27. This small-dollar setup has allowed donors who contribute modest amounts to compete with superrich bundlers contributing upward of $27,000 each directly to presidential campaigns — not to mention the millions given by billionaires to outside spending groups. For perspective, Soros’s single $6 million contribution to Clinton’s super PAC last quarter is equivalent to about 222,000 contributions to the Sanders campaign: a number slightly larger the population of Des Moines, Iowa, according to The Intercept.

“There’s no question that Senator Sanders is breaking through barriers with his small-dollar fundraising; that’s clear he’s broken records in terms of what a presidential candidate has been able to raise from small-dollar contributors,” Bonifaz said. “Having said that, he remains the exception to the rule. The rule is that big money forces dominate our political process and set the agenda for what gets discussed, not just at the presidential level but also at the state and local level, and it remains to be seen over the long haul what impact the small-dollar donors will have up against those big money forces.”

He may have a point in the end, because even though Sanders does not have a super PAC of his own, outside spending groups have still spent money in support of his campaign. More outside money has been spent in support of Sanders when it comes to independent expenditures, or communications spent “expressly advocating the election or defeat of a clearly identified candidate, that [are] not made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate” or that candidate’s authorized committee or party, according to the FEC.

This does not mean, however, that more super PAC money has been spent to support him than other candidates. When counting both independent and non-independent expenditures, super PAC cash supporting Clinton is more than twice that spent to support Sanders. As The Intercept reports:

The National Nurses United, a labor group for nurses and the only significant group to pour money into a Super PAC supporting Sanders, has indeed backed the Vermont senator by spending a little more than $1 million on “independent expenditures,” … When you dig into these filings, some are advertisements, while much of the $1 million includes a special Bernie Sanders-branded bus, printing costs, and workshops hosted by the group.

Not only have outside spending groups spent more than twice as much cash to support Clinton’s presidential bid, but the Clinton campaign has raised more than any candidate on the presidential campaign trail in the 2016 election cycle.

Furthermore, she racked up $11.8 million for 51 separate speeches, most of them delivered to Wall Street banks, big pharmaceutical companies and tech companies. Over the course of Clinton’s entire career, from 1999 to 2016, Citigroup, Goldman Sachs, Morgan Stanley and JPMorgan Chase have been four of her top five all-time contributors. The fifth contributor is the multinational law firm DLA Piper. Bill and Hillary Clinton together have helped to raise more than $1 billion from industry donors during the past two decades, landing them among the most prolific campaign fundraisers in U.S. history, according to The Wall Street Journal.

More recently on the campaign trail, Clinton alleged Sanders accepted Wall Street money during his 2006 senatorial campaign indirectly through the Democratic Senatorial Campaign Committee, which provides fundraising support for Democratic senators up for election. The Sanders campaign’s retort came swiftly, arguing that the Campaign Committee draws its donations from a variety of sources, including labor, environmental and women’s organizations, and reiterating again that Sanders does not have his own presidential super PAC. “To say that every nickel that Bernie received [from the Committee] came from Wall Street is beyond preposterous. It is laughable and suggests the kind of disarray that the Clinton campaign finds itself in today,” said Jeff Weaver, Sanders’s campaign manager.

But even though outside spending in support of Sanders’s presidential campaign is less than half of the amount pouring into Clinton’s campaign this cycle, it’s still present, and that begs the question of whether Sanders’s near tie with Clinton in the Iowa caucus and latest victory in New Hampshire would have been possible without such outside spending present. With 3.7 million individual contributions, perhaps so, but his contributions in an of themselves won’t change the system.

“I’d love to believe that … the wealth primary process has somehow been uprooted here with [Sanders’s] example, but I do not believe that Senator Sanders’s campaign points to a new way of ultimately running for office,” Bonifaz said. “What we still see all across this country, in congressional races, Senate races, governor races, state races, [is that] people are having to raise large sums of money in order to compete and run for public office, and by and large those large sums of money are not coming from small-dollar contributors. I think that means that the wealth primary remains a huge barrier to political participation for the non-wealthy.”

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