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Defining The “Free” in “Free Speech” in a Post-McCutcheon World : What Campaign Finance Reform Reversals Mean for Our Democracy?



~ “It is by the goodness of God that in our country we have three unspeakably precious things : freedom of speech, freedom of conscience, and the prudence never to practice either of them.” ~ Mark Twain, 1897.

~ “The Supreme Court has seen fit to equate money with speech; hence, our political system is—to put it delicately—an influence auction, awash in hard and soft money.” ~ Jeffrey Scheuer, 1975

~ “Citizens at all income levels might find time to work for a candidate, but only the wealthiest can afford to give $ 200 or more. In part the distortion arises from the fact that there are limits to the amount of time that can be volunteered— a day has only twenty-four hours for every citizen— but the potential amount of money that can be given is almost unlimited.” ~ Peter Francia et al. 2012

~ “The percentage of incumbents who win reelection after seeking it in the U.S. House of Representatives has been over 80% for more than 50 years, and is often over 90%.” ~ Boundless, 2014

~ “Arizona, Maine, and Connecticut are very different states—politically, demographically, and culturally. But despite their differences, their “clean money,” or “voter-owned,” elections have had important success. Candidates opting into these public funding systems spend more time talking to voters than to funders. They represent a broader range of citizens than the candidates who run with private money alone. And they have succeeded in increasing the competitiveness of state legislative elections, making incumbents if not more vulnerable, then at least more attentive.” ~ Lawrence Lessig, 2011

~ “The Court’s Citizens United opinion is a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” ~ U.S. Supreme Court Justice John Paul Stevens, 2010.

~ “No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field,’ or to ‘level electoral opportunities,’ or to ‘equalize the financial resources of candidates.” ~ U.S. Supreme Court Chief Justice John Roberts, 2014

Earlier this month the US Supreme Court followed up on its bombshell 2010 Citizens United ruling with another landmark decision further opening the flood gates to private money increasing its influence and distorting our politics. The Citizens United decision ruled that big corporations and big unions could essentially spend as much as they want to influence election outcomes, including through attack ads on individual candidates.This overturned key provisions of 2002 McCain-Feingold legislation (or Bipartisan Campaign Reform Act, BCRA). This month, the McCutcheon ruling has overturned decades of restrictions on individual contributions by wealthy Americans to candidates, by ruling that neither the size of an individual contribution, nor donations to multiple candidates (to get around individual limits) can be restricted by government. Taken together, Citizens United and McCutcheon have drastically changed the legal landscape of what is permissible. Whereas before private campaign finance contributions were limited by statute, now the potential scope of both corporate and individual private contributions has been blown literally wide open. This most assuredly risks allowing the voices of a few powerful individuals and corporations to drown out still more the voices and opinions of the many in the corridors of power. Like me, you may well be wondering how, as a country, we got to this point of disarray in our political system ? And what these far-reaching changes mean for our free speech and democracy?

Key Questions : What is the political context in which these major changes have come about? How well are average Americans versus much wealthier private individuals and corporations and unions able to have a voice in our government’s deliberations? How will these recent changes affect ongoing efforts at campaign finance reform at the Federal and state levels? How does money affect our voice as Americans in our politics? Is money really speech, as some contend? Or should speech be truly free to be available to all? How have most Americans responded to these changes and what corrective actions are needed to meet their aspirations?

Campaign Finance and Our Influence on Our Government : The explosion in the past twenty years in dollar amounts of campaign finance politicians have to raise has had major perverse effects on the transparency and effectiveness of governance in America : ~ As former U.S. Sen. Olympia Snowe observed on resigning from Congress in 2013, U.S. politicians face a perpetual campaign requiring non-stop fund-raising. This reduces time and effort on business of government and public policy. ~ It has also made the process of government become captive increasingly to a small number of wealthy individuals – not representative of diversity of American society – and of large corporations. ~ It has strengthened the power of incumbents and vested interests to block necessary changes that are perceived to be against their interests. ~ It has encouraged a pattern of artificially induced gridlock and polarization among office-holders and activists in our politics that is at variance with the the more centrist, moderate, consensual, “can-do” views and approaches of most Americans. ~ Underlying this is no longer the blatant ‘quid pro quo’ type corruption long since outlawed but which the Supreme Court still narrowly only focuses on. Rather, now private influence is exerted more subtly, though no less effectively, as observers such as Lessig and Francia have documented. It takes the form of exchanges of gifts (organizing fund-raisers, funding election campaign organizers, etc) for influence over government decisions and policy. In short, it’s a sort of endemic “corporatization” of American politics. As Justice Stevens rightly said in 2010, under-representation of private money is American politics was hardly the case, even before Citizens United!

Despite this, the U.S. Supreme Court appears to have taken its decisions based upon some form of ‘a priori’ reasoning quite at variance with current day realities in the U.S. political system and economy. While most Americans are concerned about having a more functional political system that encourages politicians to work together for the common good, the Court seems to give first priority to maximizing individual private and corporate power at the expense of the collective interest of our society. This is underscored by these two far-reaching Court rulings only passing by a 5-4 plurality rather than broader consensus. Excepting Justice Thomas, the vote in each case pitted a cabal of elderly conservative white male justices against a diverse minority that included the women and Hispanic Justices. Ironically this reflects the bias in preponderance of political influence of major individual and corporate donors who are mainly white males in their fifties in business and professions. The Court’s thinking underlying its decisions appears based upon an outdated and narrow view of the U.S. political system today. In Francia et al’s research, even major donors expressed great concern about the dysfunctional nature of American politics and the impact of flawed campaign finance upon it.
Impact Upon Recent Campaign Reform Efforts: Most polls in recent years show an overwhelming number of Americans (60-80%) wish to see a reform of U.S. campaign finance to reduce the influence of small groups of privileged private individuals and corporations on our politics. For this reason, both the Citizens United and McCutcheon rulings that will inevitably seriously increase the power of big money and privilege in politics are major moves against what the majority of Americans want to see. Rather than a system based upon systemic strong advantages for incumbents, gerrymandering, and pervasive private influence, they want to see a more open, competitive, consensual system that is more responsive to their changing needs. Ironically and sadly, therefore, the recent rulings of the U.S. Supreme Court risk imperiling campaign finance and electoral reform efforts at the Federal but also importantly the state level underway for the past several decades. As lawyer Lawrence Lessig notes (see above quote), despite their diversity, Arizona, Maine and Connecticut have shared a common drive – echoed in other states – to adopt publicly funded electoral campaign systems, based upon small contributions from citizens. These efforts have met with considerable success. But they are now on life support after the U.S. Supreme Court’s McCutcheon decision.
“Money as Speech” ? As Jeffrey Scheuer noted in 1975, for decades now, the U.S. Supreme Court has sought to define money as free speech. That is if you have much money you have the right to use as much as you want to exercise free speech. But in doing so, the Court has insidiously perpetuated a fallacy. There are at least three ways of looking at what is “free” in “free speech” : ~ Speech is “free” because it is an intrinsic part of our liberty in a free and democratic society. It is inalienable. Thus it is not an asset – like money. It is a right. We must all – as human beings – have equal access to it. ~ Speech is “free” because it does not cost anything – or should not. If it did cost something, it would be an asset. There would be unequal access to it in our society. Some in our society – wealthier folks with more assets – would also have greater access to “free speech”. Then it would no longer be “free”. ~ Speech is also “free” in that we must all have the freedom to listen to the speech of all others. Not just the speech of some and not others. We must be empowered to listen freely. In the marketplace of free ideas, like all good consumers, we must take time to check out different ones, before making choices.
Responding to the Supreme Court’s Challenge : In face of the contradictory, outdated and potentially devastating decisions taken by the Roberts Court since 2010, the U.S. Congress needs to take up the matter of reinstating and extending campaign finance reforms as a matter of high priority. Despite the gridlock and polarization in Washington, this is an issue that could potentially bring together Democrats and Republicans, including conservatives. Polls in recent years have shown a majority of Tea Party activists favoring reforms that would emphasize small individual citizen contributions while limiting those of large corporations. The successful reforms in states such as Arizona, Maine and Connecticut have shown that campaign finance systems based upon public funding and small individual donations can improve elected officials’ focus on public policy issues, while reducing their time spent raising money from, and being unduly influenced by, large private donors. No doubt this will require a sea change in political culture. But the benefits would potentially be great too.
I, for one hope that our political leaders will take the lead in championing such reforms urgently before Citizens United and McCutcheon further undermine the integrity of our already flawed campaign finance system and our policy.



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