Assume, as seems quite possible, that the Republican caucus on the Supreme Court decides to follow up on its selection of George W. Bush as President by overturning a century-old law and thereby legalizing unlimited corporate bribery of politicians under the guise of campaign contributions. That would seem a far-fetched idea, had not the Justices themselves raised the question in case where neither party had challenged the law.
Of course we can be confident that no critic of “judicial activism” will criticize the result, thus demonstrating once again that “judicial activism” is a purely partisan slogan left over from the days when the Warren Court tried to enforce the Constitution with respect to race relations.
But that demonstration will be cold comfort as a wave of corporate cash swamps the political system. The sums involved in even a high-stakes race are chump change by big-company standards; ExxonMobil’s quarterly profits exceed the total sums spent on campaigns in a four-year electoral cycle.
So if the Court opens the bribery spigot, we need a comparably large gusher of money on the other side. How about a voucher system?
Give every registered voter a voucher for $50 each year that can be contributed to the candidate or party committee of his choice. With about 150 million registered voters, that’s a potential total of $30 billion per four-year cycle. Not all of those vouchers would be used, of course, but there would be plenty to allow candidates who wanted to eschew corporate cash to do so. (A variant proposal would be to restrict the use of the vouchers to candidates who accepted them as the sole source of funding.)
This would transform politics in ways both bad and good. The current “money primary” system disadvantages populists of all stripes, from Ralph Nader to Lou Dobbs. I count that as a feature, not a bug, but your mileage may vary. What can’t be denied is that Sarah Palin would get a big leg up in her competition with Mitt Romney. That wouldn’t make me sad as a Democrat, but as a citizen I acknowledge that the country needs an opposition party at least somewhat in touch with consensus reality.
On the other hand, a Democratic Congressional majority that didn’t need to worry about raising money from employees of the financial-services industry or the trial lawyers would be much more free that the current majority to serve the public interest. If you think, as I do, that reversing the trend toward more income inequality ought to be a central political goal, then voucherized campaign finance is an essential prerequisite.
Perhaps the best would be allowing unlimited contributions, but whith the identity of the giver anonymized.
This proposal was getting a lot of play in progressive circles in the 90s. (It was also flogged by a lot of egalitarian political theorists, all of whom think that Buckley v. Valeo was wrongly decided, but know they can't do anything about it.)
I once proposed it at an event on campaign finance. Burt Neuborne, about as opposed to corporate and wealthy-individual influence as they come, said "I have two words for you: Black Market."
Re ThomasH: I presume you mean anonymous from the point of the recipient. Sort of like non-disclosure of insider information that is called for in the financial area. I've supported such an approach for years. It's not perfect, but in theory would prevent a donater from asking for a favor.
As long as we're on this topic, I believe that sometime in the 1980's they (Reagan admin?) eliminated the rule that mandated lower prices for political ads on television. That rule, while it was in effect, didn't go far enough. Since the airwaves are a public resource, I would have mandated FREE television time for politicians during elections. Still do, but now there are so many private channels (e.g. cable, satellite) that it's not a total solution.
Would a law requiring anonymity of the donor be enforceable? What would stop the donor from calling the recipient and saying, "the $1 million that will appear in your campaign account tomorrow will be from me"?
Nothing.
And I've never cared about judicial 'activism', judges are supposed to actively uphold the law. The problem is when they actively uphold something that's not really the law, or passively allow violations of the law.
My problem here, aside from the always present lack of any enumerated power basis for this, is that it keeps being justified as a limit on for profit corporations, when the real victims, (And intended victims, I believe.) are corporations organized for the specific PURPOSE of speaking to the public. ADM is the justification, the NRA and company are the real target.
Furthermore, there ain't nobody BUT people here, corporations have no real existence apart from people. They're nothing but a way people organize to accomplish things.
A way people organize to accomplish things because numerous laws make accomplishing those things untenable if you organize in another way. So, the government can't infringe on your right to free speech, but it can pass laws saying that if you want to be heard, you can only form a particular sort of organization, and by doing so forfeit that right? No. Depriving people of 1st amendment rights can't be as easy as passing laws making getting together to buy an expensive advert illegal unless you give up your rights.
???
People have always been free to pool their money to buy expensive political advertisements, without forming any kind of formal organization at all in order to do so.
For-profit corporations have a life of their own; they're more than just the sum of their investors. They don't have consciences, they can live forever, and they can amass astronomical amounts of cash.
Every single investor and employee of a corporation already has the right to participate in politics as they see fit, so I don't see how any real person's rights are infringed by prohibiting the corporation itself from doing so.
Realistically Mark, your solution doesn't have a hope in Hell of getting anywhere. You will never in a million years get anyone but very liberal people to favor it, which means zero hope for passing the senate even without a filibuster.
It will take a constitutional amendment to seriously deal with the problem and sadly I don't see that happening either. Personally I think the U.S. may be in for some genuinely catastrophic consequences before we smarten up, if we ever do.
I'm getting nauseous just thinking about the wastefulness of the whole enterprise. And for what, a crapload of mindless, dishonest drivel flooding the airwaves?
Here's to hoping that somehow the internet will manage to take money OUT of politics. Don't worry - I won't hold my breath…
BCRA was passed in 2002, which was 7 years ago, not a century ago. The reason that the case was heard a second time, after all, is that the government's lawyer was honest, and said that the principle he defended meant that the government has the power to ban corporate-published books. (For those of you who read books, you may know that corporate-published books are the most common kind.) Mark, not surprisingly, is on the side of the book banners here. It isn't clear why he thinks the constitution is on that side.
Up until the post Civil War period articles of incorporation in the US listed the specific purpose and allowed activities and that was all the corporation was allowed to do. A mining company was not allowed to publish newspapers or run ads advocating political positions. This was as the founders (of the government) intended. Corporations were concidered a necessary evil to be tolerated but tightly controled.
The idea that an artificial legal cotrivance created for convienence would have the rights of a natural born person under the Constitution would send Jefferson, Franklin, Washington, et al spinning in their graves. That We the People have allowed this nonsensical outrage to happen on our watch is a disgrace to us. The very idea of "corporate personhood" is absurd on it's face and the entertainment of such a silly notion should disqualify any individual from consideration for positions on the federal judiciary.
"raising money from employees of the financial-services industry or the trial lawyers"
You causually equate (1) a group that has gotten something like a trillion dollar in government funds with little to no strings attached with paying themselves millions and billions in bonuses for a job well done and (2) people who spend their days represent middle class people who have suffered severe injuries and little old ladies defrauded of their life savings.
Wow, just wow.
"People have always been free to pool their money to buy expensive political advertisements, without forming any kind of formal organization at all in order to do so."
I take it you aren't aware of the Federal Election Campaign Act, which makes it a crime to pool together more than $1000 for political advertising without forming a particular sort of organization? Do you really think it's an accident that every newspaper larger than a flier for a bake sale is organized as a corporation? It's no accident, it's a result of laws and legal doctrines which make organizing on any scale at all without forming a corporation either illegal, or financially perilous in the extreme.
I think we'd be better off looking at the 1st amendment as setting aside an area of action the government is supposed to stay the Hell out of, than looking at it from this "Ok, how can we find an excuse to infringe this right anyway?" perspective. It's not just because it's a right, it's also because having incumbent officeholders regulating the speech of people trying to unseat incumbent officeholders is a conflict of interest of mind boggling proportions. To much of a conflict of interest for any theoretical gain from doing it to be worth while.
Unless and until all elections are funded from the public purse, with it a crime to provide financial support directly or indirectly (including in-kind contributions) to any candidate or measure, or any sitting or potential office holder, this country will be run more and more by a handful of people running fewer and fewer corporations. Any and all half-way measures can and will be circumvented. We are already so far down this path that only an upheaval of our way of doings greater than any we have seen since the Civil War will get us out of this mess. The analogy between free speech and free contributing is bogus. Of course, there will be violations that get through, no policy in governance is perfect, but the scale of the problem will be cut back so far the health of our democracy will improve beyond measure. No combination of tens or hundreds of other actions will have nearly the same salutary result.
There are some similarities with this and Oregon's Campaign contribution tax credit. In Oregon the onus is on the taxpayer to come up with the $50 to contribute, the taxpayer then gets the $50 back when filing a state income tax return. That and the ability to contribute to initiative campaigns as well as candidates seem to be the main difference.
Minnesota did something similar at one point; I believe they've since changed their campaign finance laws.
As most campaign money goes into television, wouldn't it be simpler just to require broadcasters and cable companies to provide a fixed and equal amount of tv time to each candidate and to prohibit them from accepting any political advertising? We already prohibit their broadcast of hard-liquor and tobacco products; why not prohibit something equally lethal, namely, corporate political statements?
One man, one voice, one vote. No more bought elections.
Just for the record, there is no legal prohibition against advertising hard liquor on t.v.; the restraint is voluntary.
"As most campaign money goes into television, wouldn’t it be simpler just to require broadcasters and cable companies to provide a fixed and equal amount of tv time to each candidate and to prohibit them from accepting any political advertising?"
As a long time member of a third party, I can tell you where that goes: First, you decide that there are too many "phony" candidates running, and then you start getting arbitrary about who gets to count as a "real" candidate, and thus gets to purchase airtime.
And, anyway, where the hell did you get the idea that only candidates have any right to comment publicly on candidates for public office? It's a right of the PEOPLE, not a right of the "candidates".
Would anomynity be enforcable? Maybe not but the commmunication of the donation could be treated like bribery. And techlogy might be able to help by disguising donations as separate donations at random times.
ThomasH, For the communication of the donation to be treated like bribery, the donor would have to ask for a quid pro quo, which I assume that donors do not ordinarily do because the politician knows what they want. In addition, for the authorities to learn of the communication, the politician or someone on his staff would have to report it (unless there is a wiretap in place), and it is not in the interest of the politician to report it.
In your comment about technology, you must mean either that it would help donors by disguising donations as separate, or that it would help the authorities in seeing through such disguises.
Would anonymity be enforceable? Not if the least vestige of freedom of speech remains intact. A law prohibiting you from telling somebody else that you'd done something perfectly legal? Come on, now, why would it even begin to occur to you that such a law could be constitutional in a nation with a First amendment? Seriously, why would you think that?
Look, stop treating the 1st amendment as an inconvenient obstacle to work around, and start taking it seriously. If it involves telling people to Shut The Hell Up, it's unconstitutional. What's so complicated about that?
Brett, it's not that simple. The Supreme Court applies balancing tests to determine whether a government restriction on speech is constitutional. It will uphold content-based restrictions if the government has a compelling interest in the restriction and if there is no less restrictive means to advance that interest. The Court might not even treat an anonymity requirement as a content-based restriction, but might uphold it if the government demonstrates merely an important, as opposed to, a compelling interest. See Buckley v. Valeo, 424 U.S. 1, 25 (1976).
Yes, Henry, I'm aware that there is indeed some part of "no law" the Court has trouble understanding. This is understandable, as you don't get onto the Court without being nominated by, and confirmed by, people who find Constitutional limits on federal power chafing. Because that power is THEIR power.
My livelihood doesn't depend on pretending that the Constitution contains an invisible, "unless you've got a good reason" clause. Does yours?
It is that simple.
Brett, if the Court took "Congress shall make no law … abridging the freedom of speech" literally, then the government could not outlaw threatening to kill someone, conspiring to commit a crime, offering a bribe (other than a campaign contribution), engaging in perjury, treason, or false advertising, or falsely shouting fire in a theater, among other limitations on speech that we take for granted. There are no First Amendment absolutists.
Also, not taking the First Amendment literally cuts both ways, in that it limits as well as increases the government's power. "Congress" is construed to refer to every branch of the federal, state, and local governments.
That's an interesting list you've got there, everything from threatening to kill somebody, to honestly telling them you've made a legal campaign donation. What's the principle here? "You admit there's some form of speech, at the limit, that we can punish. Therefore we can punish any form of speech we like."?
I have yet to encounter an enthusiast for campaign 'reform' who wasn't terrifyingly casual about restricting speech. And usually quite indifferent to the breathtaking conflict of interest inherent in, as I've said, allowing incumbent officeholders to regulate speech intended to unseat incumbent officeholders. You think it's some kind of coincidence that, as the campaign 'reform' movement has advanced, reelection rates for incumbents have soared? Any more 'reform', and we might as well abolish elections, the outcome will be so pre-ordained!
“You admit there’s some form of speech, at the limit, that we can punish. Therefore we can punish any form of speech we like.” Neither I nor anyone I've ever encountered takes that position; it is a straw man.
The merits or demerits of campaign reform are independent of its enthusiasts' views about restricting other forms of speech. Having said that, I'll nevertheless add that my experience is different from yours: I have encountered enthusiasts for campaign reform who are otherwise strong First Amendment advocates.
Your conflict of interest argument is valid, but it is equally valid if Congress chooses to allow the current system to continue, or changes the current system to eliminate all restrictions on campaign contributions. If campaign reform causes reelection rates for incumbents to increase, then that is an argument against it, independent of the conflict of interest. I express no view as to whether the increased reelection rates of incumbents stem from campaign reform. I am addressing the quality of your arguments rather than the issue of campaign reform.
Since Brett has a point that Congress has a conflict of interest when it engages in campaign reform (or, as I added, when it does not engage in campaign reform), the solution would be for Congress to delegate campaign reform to an independent non-partisan commission. This would be constitutional if Congress, as it does with any federal agency, prescribed goals for commission to strive for and retained the power to overrule the commission. There would presumably, however, be pressure on Congress to abide by the commission's decisions. I do not know whether anyone else has proposed this solution.
Are you out of your ever loving mind? You are, if you think that would resolve the conflict of interest. "Independent" commissions are a way to launder conflicts of interest, not eliminate them. The people on the commission always have to be chosen, and they sure as hell aren't chosen by the challengers.
Every single investor and employee of a corporation already has the right to participate in politics as they see fit, so I don’t see how any real person’s rights are infringed by prohibiting the corporation itself from doing so.
This absolutely right.
In fact corporate contributions are a misappropriation of some shareholders' money, since they may go to candidates the shareholders oppose.
Just like I said higher in this thread: You insist on pretending that the corporations this applies to are all for profit corporations. But these laws apply equally to corporations like, say, "Citizens United", corporations organized specifically for the purpose of spending the 'shareholders' money on a given cause.
ADM is the excuse, NRA is the target.
Brett,
What exactly prevents individual NRA members from expressing their opinions in print, on the web, or elsewhere?
Aside from the fact that most of them can't, as individuals, afford large scale media campaigns? That if ten thousand people each separately can't afford to produce an advertisement, and run it on TV, then if you prevent them from getting together, you prevent them from running it?
Nothing, but so what? What's your position here, that people may not band together to exercise their rights in concert? That, for instance, we can each worship in the privacy of our own hearts, but we can't have churches to do it in unless you can find a single person who can afford to build one? That I have the right to counsel, but nobody can help me with the cost?
It seems to me that Brett's reasoning applies equally to the SEC. Why shouldn't people be allowed to pool their money for whatever kind of enterprise they want to commit to (with political messaging as a mere subset), under whatever written or unwritten conditions, without all that pesky government interference?
We pretty much already have the contribution-anonymity question asked and answered. Simplistic restrictions won't work (see, for example, all the netroots campaigns where people added some number of cents to their contribution to indicate which blogger they were reading). More complicated ones will (see Tor and other obfuscating packet routers, which not only encrypt and anonymize but include lots of fake inter-router packets to prevent traffic analysis), but you have to have serious resources and you have to trust the people running your anonymizing infrastructure (see the reporting on people who built malicious Tor exit points and read all the interesting traffic going through them).
It seems to ME that what we're talking about here is an explicitly guaranteed constitutional right. Could we treat it like one?