As I noted earlier, there was very big news at the Supreme Court today — and it wasn’t the Ricci case. The biggest news was the non-decision in Citizens United v. FEC, in which the Court ordered reargument and briefing on whether two important campaign finance cases should be overruled. SCOTUSblog describes the issues presented as follows:
In the Austin [v. Michigan Chamber of Commerce] decision, the Court upheld the power of government to bar corporations from using funds from their own treasuries to support or oppose candidates for elected state offices. In the part of McConnell [v. FEC] that the Court will reconsider, the Justices upheld a provision of the 2002 campaign finance law that bars corporations and labor unions from using their treasury funds to pay for radio or TV ads, during election season, that refer to a candidate for Congress or the Presidency, and appear to urge a vote for or against such a candidate.
This case, in other words, is now about the opening of the floodgates of special interest money into the campaign system. Here’s Rick Hasen, who has forgotten more about this stuff than most people will ever know:
If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama…. If after reargument in September, corporate limits fall – and limits on the money labor unions can spend on campaigns, with them – we may well look back on the 2008 election as a quaint time when the amounts spent on elections were relatively modest. Expect the floodgates to open, and the money to flow freely, as early as next year.
Hasen thinks, and I agree, that the Court is almost certain to overrule these cases (probably 5-4, or 5-3 if Sotomayor is not yet confirmed when the case is decided). We know for certain that Justices Kennedy, Scalia, Thomas will vote to overrule (they’ve said so in past cases). And it beggars belief to think that Roberts and Alito won’t go along, given the opportunity — Hasen reports that Alito has publicly expressed discontent with the current campaign finance cases, but has been unwilling to overrule past precedent until the issue was squarely presented and briefed. Now, it will be.
So once that happens, what next? Does it make any sense at all to retain paltry individual contribution limits like the federal $2,300 — or the state’s $500 (remember that a constitutional ruling will invalidate state campaign finance regulation on union and corporate expenditures too) — when unions and corporations will be free to flood the airwaves with all the ads they can buy? Should we just make the whole thing a free-for-all, as long as all expenditures are immediately disclosed?
And I’ve said so before.
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p>Let groups, unions, etc. ask members to donate. And David – I am for free speech and full disclosure. Let there be a PROMINENTLY TAGGED media free-for-all by proxies – but an end to direct donation. And a requirement that the ‘approval’ message continue on any media advocacy, with any failing to have the candidate’s direct approval be denied space. I spend HOURS getting people to sign authorizations for newspaper ads if their name is used – and that isn’t declared an abuse of free speech.
You meant this, I think.
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p>Interesting idea, but doesn’t solve the problem. The issue before the Court is not about donations to candidates. It is about independent “electioneering” expenditures — i.e., let’s say G.E. wants to spend $100 million on an ad campaign urging the election of Mitt Romney. Under current law, they can’t do it. After September, however, maybe they can.
By anyone, or any group?
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p>Interesting. I need to think about that.
Actual humans only.
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p>The individual members of a group can donate and can be urged to do so. Of COURSE they can still join (or be compelled to join) groups, Brookline Tom, but the GROUP cannot make a donation. Only humans can. Right now, unions don’t ask membership, groups don’t poll individuals. They simply use amassed funds as the leaders think best.
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p>Let there be a cascade of advocacy advertising (God know the media can use it!). BUT – in front of EVERY third party ad there must be the ‘I approved this message’ caveat, to end the coy, ‘Gee, I had nothing to do with this, but isn’t that an interesting point they raise..’ crap. No caveat, no publication/broadcast.
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p>The most effective political ad in history had no clear attribution.
Both provisions you suggest are unenforceable with the current Constitution.
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p>Suppose some unscrupulous organization compels its members to make individual donations. Suppose a candidate receives several thousand checks, in the same amount, from individuals all belonging to that organization. Other than killing a LOT of trees, and wasting a lot of administrative time handling the checks, what substantive difference has the proposed change made?
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p>None. None whatsoever. The same organizations will
coerceencourage the same contributions, have the same influence, and will use it the same way. The only way to make a dent would be to “investigate” the “suspicious” ties between individuals and organizations. Whoops.<
p>In your second suggestion, you deny the right of free speech to either the advocacy group or its members. Who decides what is and is not “advocacy advertising”? I believe that is the focus of the case we’re discussing, and I don’t see how your proposal illuminates that question.
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p>Your example is very well-taken. Are you suggesting that the ad should not have aired? As you observe, it is arguably the most effective political ad in history. It is surely an example of protected free speech. If I think that a particular candidate threatens to unleash nuclear holocaust — rightly or wrongly — then surely I have a first-amendment right express that thought with or without the permission of anybody else. If I and a group feel that way, and we pool our money to make and buy the ad, then surely your proposal would similarly disenfranchise us. In my view, your proposal is a flagrant attempt to interfere with my own freedom of expression and therefore my first amendment rights.
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p>Sorry, but I have serious problems with both of your suggestions, together or separately.
I’d like to see them try. SEIU tries to MAKE me donate to their candidate? HAHAHAHAAH…whereas NOW, they extort money through ‘dues’ and use it themselves. At least my way, there’d be a CHANCE.
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p>And again – let a thousand flowers bloom. But the CANDIDATE has to be accountable for statements made on his behalf. I would have allowed the Daisy ad to run – but I’d have made Lyndon acknowledge it instead of hiding behind Bill Moyers.
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p>Consider this, Tom – if political free speech is absolute, then why are there campaign finance laws AT ALL? Why are there laws that don’t allow electioneering in a polling place? In fact, why do candidates have to do an approval statement for their OWN ads? We regulate political speech all the time – making candidates responsible is..well…responsible.
I think the Daisy ad exemplifies the sort of free speech that the government must not impair. I simply and fundamentally disagree with your position. As much as I was nauseated by the Swiftboat campaign against Kerry, I think it would have been unconstitutional to require Mr. Bush to “acknowledge” it. In my view, the standard you propose — “statements made on the candidate’s behalf” — amounts to muzzling every supporter of a candidate.
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p>The various regulations you cite on political speech (electioneering in a polling place and candidate approval statements) strike me as comparable to restrictions on yelling “fire” in a crowded theater — they are reasonable restrictions that serve a well-defined purpose.
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p>I think the campaign finance laws have been on shakier ground since their inception, and have been resisted on that basis.
In addition to free speech, the Constitution also provides for freedom of assembly.
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p>In the link you cited, you wrote:
“No unions, no activist groups, no PAC’s – and no lobbyists. Why can unions give contributions, and not busineses?”
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p>I think any effort to limit individuals from forming groups would be flagrantly unconstitutional. I think there is very little difference (other than logistics) between a group of 1,000 individuals giving a contribution of $500,000 using 1,000 individual checks and one $500,000 check.
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p>Sorry, but I think this approach flagrantly violates fundamental constitutional protections afforded every American.
… the Constitution is the source of a lot of problems. I think the question is, do you accept that money can ‘distort’ an election as being a fair representation of the ‘will of the people’. On its face it would seem impossible because the money doesn’t actually do the voting. Yet our common sense indicates that this distortion is (or at least can be) a real phenomenon. It must follow then that if money has an effect on voting, it’s because it can be used to create messages that influence people. Problem is that in general, we protect messages that can influence people constitutionally. There are exceptions of course, but this exception would be an entirely new exception. I think it’s a justified exception based on the demonstrable outcome. There is a difference between an exchange of ideas and a carpet bombing of ideas. I would argue that there is a state interest in which one happens in an election and that elections are so important as to justify this interest being codified into free speech exceptions. I don’t think limiting speech is the same as censoring it.
if I control a technology that can manipulate your desires?
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p>This is the question B.F. Skinner raises in “Beyond Freedom and Dignity”.
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p>It is hugely important. Sadly, I don’t think we know the answer well enough to amend the Constitution yet. The issue is that we clearly have technology capabilities unimagined by the founding fathers. Specifically, the ability to very carefully manipulate the wants, needs, desires, emotions, and aversions of the public (and the voters). There is a reason why corporate America spends so much on video advertising — it works, far better than print. It changes people’s behavior.
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p>I just don’t know what the limits should be, and I would rather err on the side of too much freedom than too little.
Speech freedom vs. the interest in not having elections drowned out and potentially ‘distorted’ by money. Tough call. That’s why I call for a blackout period. I think it’s a reasonable compromise, as it doesn’t really prohibit any content of speech, just regulate the timing, and not in any way that would prevent the speech’s opportunity to influence.
Without contribution limits, those most interested in a particular issue can make their case most effectively. To me it’s a method for balancing the popular vote.
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p>With contribution limits, the interests make their case anyway, but in underhanded ways, such as buying prostitutes for the reps. Wouldn’t it be better if this was out in the open?
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p>And one consequence of tough contribution limits has been unforseen: more millionaire candidates. The Dems have done this as much as the Reps. Wouldn’t it be better to have a talented if poor politician backed by rich people, rather than have the rich and dull in there themselves?
a good time to start the process of changing the constitution.
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p>The only sad thing, though, is which special interests are going to be the first to admit this is bad for democracy? This just opens the doors wide open for every special interest, the good ones and the bad, the greedy corporations and the SEIU (hopefully I’m wrong).
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p>We shouldn’t, as a society, be afraid to change the constitution. It is higher law and it should remain for only the most fundamentally important issues of how government works, as well as a documentation of our civil rights. That said, the guys (!) who first wrote it weren’t any brighter or smarter than us. If the knowledge we’ve been imparted with today indicates there’s important changes needed, we shouldn’t be afraid to do it.
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p>Most of them were pretty damn smart. It’s not glamorizing them to say that.
But there’s nearing 7 billion people on this planet. We aren’t all intellectual lightweights. To be fair, “us” could be interpreted vaguely – I was referring to society at large. Humans haven’t become dumber since the 18th Century. In fact, given that women were held intellectually irrelevant — and African Americans weren’t even allowed to learn how to read — I dare say I think we could at least pool together a Constitutional Convention that were not only every bit as bright, but certainly far more representative, of society.
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p>Don’t get me wrong; I’m not trying to take away anything from the founding fathers, but we’d be an awfully sorry society if we haven’t learned something since then. Do keep in mind the fact that the founding fathers expected us to continually alter and amend the constitution — I doubt any of them would have come to expect the utterly irrational and illogical fear of amending the constitution that presently exists, be it from some absurd level of hero worship or due to my least favorite human trait, that of being risk adverse to the extreme of being unwilling to do anything important.
however, i also think there should be more prizes for donations.
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p>mugs, tote bags, chance to win sox tix.
does it have real hair
the original (doh!).
It’s not a terribly popular idea, but if you bring back the fairness doctrine for broadcast you will blunt the power of money.
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p>If your multi-million-dollar ad buy will trigger free air time for your opponents, it’s worth a lot less for you and for the people who are donating to you. Result: it doesn’t matter so much.
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p>This is far from perfect or complete, but is really the market-based alternative to the campaign-finance laws that will likely be disallowed. And, it’s based on asserting property rights (the public owns the airwaves).
… a blackout period where the campaigns themselves would be the only ones allowed to air. I would assert that even if you buy that money=speech (which I don’t), this can pass muster on the basis that the state has an interest that elections are better served when the candidates can be heard from, and that an environment where their message can be drowned out by higher ‘volume’ messages, the state’s interest in ensuring that the candidate is heard from fairly, is subverted.
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p>But I’m not on a court that can overturn this.
The web will be the battleground. TV, radio, and newspapers will be far less material to the outcome. Attempting to regulate or place limits on the web is extraordinarily difficult, by design.
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p>Keep your eye on, for example, “tiered” access pricing — blogs like this that successfully draw traffic from corporate sites (like CNN and Fox) will find their access fees skyrocketing. It’s all about money and wealth, folks. The politics aren’t nearly as important as how much wealth ends up in what pockets.
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p>Trying to solve this with regulation is like wrestling Jello. Squeeze one place, and it just oozes out another. Squeeze too long, and it melts altogether, only to re-jell somewhere else.
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p>In my view, this battle must be fought in two arenas:
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p>1. Public culture: We must see ourselves as a movement, and proselytize on its behalf. Corporations have customers, and customers vote with their pocketbook every day. If enough customers dislike a company or group of companies, they’ll take their business elsewhere. That’s why companies don’t buy ads on porn sites. The immediate impact of Ann Coulter’s disgusting CPAC 2007 outbursts was her loss of mainstream corporate sponsors like Verizon, Washington Mutual, and Mitsubishi. We have the power to influence public opinion; we should use it.
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p>2. Business: We must compete, successfully, for their money. The best way to answer the influence of right-wing corporate wealth is with progressive wealth.
I dunno. I think the current net neutrality scheme has worked pretty well at keeping the ‘cost of entry’ on the internet low enough to enable the creation of all the sites we love now. I don’t know anyone who’s favorite website is CNN.com for example. Surely this is a regulation that has worked, yes?
I totally agree that it’s working now, for those of us in the long tail. Corporations are becoming increasingly unhappy about that, particularly having seen contributions from the long tail take the White House from the GOP (from their perspective).
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p>Corporate interests are working hard to introduce tiered pricing. In addition, corporation interests hold the patent rights to virtually all the technology (hardware and software) used by the backbone. License fees for those patents are currently low or free, and currently support net neutrality. There are increasingly loud voices suggesting that this be changed.
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p>The argument being cited is that as web use trends towards video streaming (small numbers of long high-volume transfers), “expensive” infrastructure changes should be created to accommodate them. Sort of like building interstate highways to accommodate long-distance auto traffic. A growing number of corporations argue that these new facilities should be more expensive — sort of like toll roads.
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p>The net neutrality regulation has worked so far. The open question is how much of that is because it has not, until now, significantly restricted corporate affairs.
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p>I also note that the backbone infrastructure is currently built out and owned by private corporations, unlike the interstate highway system.
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p>What happens if the feds build the next generation of internet infrastructure, following the example of the interstate highway system?
… about a Federal internet backbone. We’ve had public utilities in the past so I’m not sure I’d be that afraid of it.
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p>I was just pointing out that your general instinct (as exemplified in the quote) of not relying on regulation because of the workarounds can be misplaced. There is, of course, such a thing as bad regulation and weak regulation, but that’s no reason to swear off of regulatory solutions all together. It’s just a reason to make sure regulatory solutions work. This can be done, as has been demonstrated in the past.
I enthusiastically agree that an important role of government is to regulate corporations. I certainly don’t mean to imply that I advocate “swearing off of regulatory solutions all together”.
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p>Instead, I’m attempting to observe that, like the cat-and-mouse game played between malware authors and those who write protection software, such regulations are likely to have only limited success (limited in either time, scope, or both).
Hasen views this as something primarily benefiting Republicans. Considering the Wall Street dollars which flowed into Democratic candidates last election, I think this is more a potential victory for pro-business elements than for either party.
It is one of only three states which require no financial disclosure. Interesting context.
Corporations are a business structure. The do not have the same rights as humans. I’ve not seen a corporation in the voting booth nor one in prison. I would not find it impossible to limit or deny any political contributions from corporations, unions, pacs, foreign countries to any candidates.
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p>On the reality side, however, we can bet there is too much on the table not to give free reign to the corporations.
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p>A criminal is a person with predatory instincts without sufficient capital to form a corporation. –Howard Scott
This is another issue where people need to read more about the Citizen case before jumping on the bandwagon. While in this case it’s about that anti-Hillary Clinton movie, it could just as easily apply to a Michael Moore documentary or even a book. And if you think I’m joking that very hypo came up during oral arguments before the SC. There’s a reason the ACLU filed an amicus brief on this.
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p>I held a Clean Elections sign for six weeks straight back in 1998 but to me this is going to far in the name of “campaign finance reform.”
What a freaking nightmare! How does this not guarantee that whoever backs the most profitable industries will always win?
Always has been. Is now. Almost surely will be.
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p>American culture has been selling its soul to corporate interests since at least the sixties (that’s as far as my own first-hand knowledge goes). Political systems will always be lagging indicators. If we want to change politics, we must change our culture. That takes time, it is seldom well-structured, and it is always resisted by the handful (fewer than 1%) of the population that control or hold the bulk of the world’s wealth.
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p>I submit that if we want to limit or influence the most profitable industries, we need to own or control the most profitable industries. The best way to limit corporate industries whose values clash with our own is to take away their wealth. The most immediate way to take away their wealth is to outperform them in the market.
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p>The fundamental question, in my view, is whether “blue” business practices — “abundance” thinking, “sustainability” thinking, collaborative models — are better or worse as business models then their red counterparts — scarcity thinking, exploitative thinking, zero-sum (instead of collaborative) business models.
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p>I am of the belief — faith, even — that blue practices are better business practices in the information economy of the electronic age. If those who feel as I do are correct, than our task is demonstrate this, through example.
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p>If the “most profitable” industries are genuinely owned and controlled by progressives, and if those industries genuinely reflect progressive values in their day-to-day operations and interactions with the world and culture around them, then I’m not sure I have any problem with granting them essentially unlimited media access.
Unfortunately, that’s the biggest list of IFs I’ve seen in a long time, unless those industries are nationalized, and unless the nation is consistently governed by progressives. One spasm of Bushist administration would throw a monkey wrench into the works.