Lobbying has been a part of U.S. politics since our nation’s early days, but campaign spending has ballooned to new heights in the decade since the U.S. Supreme Court’s 2010 Citizens United ruling that said political spending by corporations and other outside groups is protected by First Amendment free speech rights. Since that 2010 ruling, unfettered funds from wealthy individuals, dark money groups, and other special interests (including foreign entities) have flooded U.S. politics — as well as airwaves and mailboxes — in an effort to curry political favor. In the 2020 election, political spending topped $14 billion, including $1 billion from dark money groups, non-party organizations that don’t have to disclose their donors.
But business leaders of small to midsize enterprises are largely left out of this pay-to-play game and forced to play by rules that have been influenced to benefit select industries and corporate giants. This means entrepreneurs are often left behind in the competitive marketplace and society, and on a larger scale the economy suffers from limited growth and innovation. Increasingly, this “political arms race” also means larger companies must donate to compete, then attempt to reconcile their lobbying and political donations with their public statements on values and societal issues.
During his career as an attorney in public and private roles, Jeff Clements watched what he calls “the change in what the Constitution means,” the effect of that change on people across the political spectrum, and the loss of the public commons to private enterprise. He decided he couldn’t sit on the sidelines, so in 2016 he founded a nonpartisan organization called American Promise to support a grassroots movement focused on reducing the influence of money in politics.
The American Promise proposal is a constitutional amendment that would put reasonable limits on political spending and better enable politicians to act according to their constituents’ beliefs rather than those of wealthy donors. While an amendment may seem like an ambitious goal, Clements says a long-term change is necessary to address the dysfunctional campaign finance model that Citizens United helped create. He notes that it has support from a large majority of Americans — including business leaders and legislatures in 22 states — of all political stripes.
As part of my research on purpose-driven business, I recently talked with Clements about his motivations for starting American Promise, how corporations currently engage in political spending, what it takes to advance an amendment to the U.S. Constitution, and why most businesses are on board with reforming the current campaign finance system.
Chris Marquis: Share a bit about the concept behind American Promise and the role that business leaders can play in the organization.
Jeff Clements: We want to unite Americans to implement what most of us already know we need: a constitutional solution to the out-of-control money in our political system so that effective American self-government, representative democracy and free speech for all Americans is a reality. Business leaders are a key part of the American Promise strategy. At American Promise we try to serve Americans of any political stripe who want to answer this call to action – we can be a provider of tools and infrastructure, a connector, or a strategic leader, but in the end constitutional amendments and whether we can get back on track is up to all Americans. It’s a network strategy — veterans network, business network, social worker network — where this issue meets people where they live and engage with each other. They can accelerate their learning about it and peer-to-peer action around it. Business is important for this effort for a lot of reasons. One is that Citizens United and other related cases purport to be businesses friendly. Many business people are saying, “No, thank you, we didn’t ask for this, and it’s not good.” It’s really important that that voice be heard, so we created the American Promise Business Network.
We need to have support for this across partisan lines, and businesspeople, of course, cross partisan lines. No one in business behaves like our politicians do now. Every day, business people are listening, negotiating, resolving conflict and implementing solutions. They are influential and are used to expressing their views, usually in a civil and clear manner. We hear a great interest in taking action from a lot of business people, including the many small and midsize businesses who don’t have the capital to play the money game in our broken political process.
These businesspeople want to have a voice — and not only as citizens, but as professional leaders whose businesses are impacted by policy decisions. When you look at which businesses actually are able to play in this out-of-control system, it’s only the largest, most concentrated, most global businesses. It’s not the vast majority of businesses in America.
We think that most would welcome the American Promise For Our Freedom Amendment. For example, one company involved in the American Promise Business Network is Pirelli Tire. It’s a public company headquartered in Milan, but the American business is based in Georgia. They have a no-political-spending rule — they don’t do it anywhere in the world. And they’d like their competitors to have to play by the same rules. IBM is another company with a no-political-spending policy.
So this Business Network is important both to help us win and also to carry forward the case that this is not about business versus everyone else. If we as a society don’t define rules for when business capital can be leveraged into political capital, we create a systemic dynamic where investments in political spending to control candidates and policy brings a better return than investments in innovation or competition. This enables a few industries to actively hurt the public interest to advance their business interests, either because they have more capital than anyone else or because their business model doesn’t work without extracting undue advantage through political spending. We – not just as businesspeople but as citizens – must prevent that by enabling fair rules and guardrails.
Marquis: Since Citizens United, it seems there is an ability to circumvent individual contributions limits. Why did the Court find businesses could contribute unlimited amounts to PACs when there are limits on individuals? If “corporations are people” is part of the rationale, that seems inconsistent.
Clements: To be clear, the Supreme Court ruled that anyone – corporations, unions, billionaires, you name it, can run unlimited money into elections to influence the outcome, even if the technical limits on direct campaign donations to the candidate still apply. The Supreme Court’s theory is that, while direct contributions to candidates have a risk of corruption, so-called “independent spending” like the money that goes to Super PACs won’t “influence” the candidate or officeholder. Under this theory, so-called independent spending is akin to free speech, so limiting that money can’t be justified. It’s a syllogism: Money facilitates speech, so money is akin to speech, and Americans should not limit speech, therefore Americans are not allowed to limit money’s influence in our elections. That’s a pretty radical new interpretation of the First Amendment. And we’ve found that most Americans think that it’s a ridiculous “clever lawyer” theory, and not how the real world works.
Another major problem we’re seeing with this legal theory is that the FEC (Federal Election Commission) recently ruled that in state ballot initiatives, there is no law that prohibits foreign governments from spending money. For instance, Ottawa Power, fully owned by the Canadian government, spent $24 million to influence a ballot initiative in Maine. The CEO testified in the Maine legislature after being summoned by some irate senators. One of them asked, “Could you do this in Canada?” and the CEO said, “Oh no — Canadian elections are very serious.”
Marquis: A constitutional amendment seems like a big step — why the need for this instead of another approach? And why do you think the time is right for an amendment?
Clements: Over my career, I saw the top-down, lawyer-driven change in the meaning of the First Amendment and our Constitution lead to deep erosion in civic trust, government accountability, and our ability as a nation to protect the public interest or the public commons against abuses from private power. I think private enterprise is good, but it works best with democracy, checks and balances, and some rules and clarity around what’s the public sphere versus the private sphere.
Here’s an example: In my role with the Massachusetts Attorney General’s Office, I was involved with tobacco litigation. We were trying to enforce pretty basic laws regarding a buffer for tobacco marketing around schools. Big Tobacco targeted children with advertising outside of schools to get kids addicted because their scientists said, if you can get kids hooked at 15, you have them for life, but if you wait till 21, they’re not going to be as susceptible to being a lifetime customer.
The tobacco companies sued, saying the rule against marketing cigarettes around schools and playgrounds violated their First Amendment free speech rights. They didn’t debate the public policy; they just said Americans weren’t allowed to touch them because of the First Amendment. The argument is that targeting cartoon cigarette ads in places where children go to school is free speech. We won that case all the way up to the Supreme Court, but then we lost 5-4 in the Supreme Court case called Lorillard Tobacco Co. v. Reilly. That is a dangerous change in what free speech is supposed to be about in America.
So the reason we need a constitutional solution now is that a constitutional mistake is at the root of our problems. We are at a constitutional fork in the road. In my view, the road we’re on if we don’t correct the Court’s constitutional mistakes about money, free speech, and elections leads to oligarchy, social division and unrest, and the deep erosion of the pragmatic, dynamic, free American society. The road of a constitutional amendment gives us a better chance to navigate the challenges of the next century, where we have a responsive government and civic trust because the constitution protects the rights and interests of all Americans, not just the tiny slice of us who can deploy millions in political donations.
Marquis: In the business world, it seems some influence on the government is through organizations like the Business Roundtable, which has been saying that businesses should be focused on stakeholders like employees and other constituents as opposed to just shareholders. But if you look at their work, they lobbied for Trump’s corporate tax plan, many of the companies have employees who don’t earn a living wage, and other issues. What role could groups like that play in the campaign spending issue American Promise is working to address?
Clements: I think we can’t judge too much based on the current system because the current system allows, or even requires, a lot of hypocrisy from those who operate in the system but would like to see it be better. Like a lot of forces, powerful groups like the members of the Business Roundtable can do damage, or they can help drive change. I think our amendment is something that the Roundtable and all business groups could support. For example, the U.S. Chamber is one of the big lobbying spenders, but some of our most committed supporters and volunteers in the Business Network are local and state leaders and members of Chambers of Commerce.
Many of the members of the Business Roundtable or the U.S. Chamber are global and at different orders of magnitude in terms of scope and scale than local and state businesses. But they too will benefit from clear, level playing field rules about political spending in America and the more responsive and responsible political culture that results from that. I hope they can get on board with this effort, too, and at least not be in opposition. When push comes to shove, and we’re trying to get a vote in Congress and in state legislatures, I would hope that, at a minimum, they would recognize that this is simply sound, prudent constitutional and civic law.