More on Citizens United and Campaign Finance Reform

Below is an editorial I wrote for The Writ, the DU law newspaper, in response to a previously published editorial on the Citizens United decision:

In 1972 the newly formed Federal Election Commission (FEC) brought its first enforcement action under the 1971 Federal Election Campaign Act (FECA). The defendant was a group composed of some lawyers, a law professor, a former Senator, and other persons of prominence who called themselves the “National Committee for Impeachment.” Their crime? They had purchased a two-page ad in the New York Times with the headline, “A Resolution to Impeach Richard Nixon as President of the United States.” Evidently, they’d made the grievous mistake of not registering with the government before obtaining the right to criticize it.

Is this the type of dangerous political action that comes to mind when you think of campaign finance reform? Moreover, would this enforcement action have been any less shocking if the National Committee for Impeachment had been registered as a corporation?

Prior to the Supreme Court’s January decision in Citizens United v. FEC, whether the National Committee for Impeachment was a corporation would have determined whether they could voice their criticism against a corrupt government. Citizens United has produced many chicken-little warnings of “the end of our democracy.” Olbermann stupefyingly compared it to Dred Scott. Keeping up with this level-headed tenor, the February issue of The Writ featured Geoff Frazier’s hyperbolic editorial emblazoned with the histrionic headline, “Thank the SCOTUS, Because You Now Live in a Corporate Oligarchy.”

Here, I offer a response to Mr. Frazier and those who agree with him. I will first address some of the misconceptions and errors repeated by Mr. Frazier and many other commentators. I will then offer some comments on the dangers created by all campaign finance reform, not just the provisions struck down in Citizens United.

Misconceptions and Errors

The errors in Mr. Frazier’s article are at least in good company. Not only are commentators consistently repeating them, but the President repeated these errors while chiding the Supreme Court justices to their faces (with an understandable reaction coming from Justice Alito). First, Citizens United explicitly says (on page *34 of the opinion) that its ruling does not reach the prohibition on foreign expenditures. Second, Citizens United did not overturn a “century of precedent.” This phrase, which has entered into the echo chamber of commentators, refers to the Tillman Act of 1907. The Tillman Act prohibited direct corporate contributions to candidates. Citizens United only struck down bans on independent corporate expenditures that are not coordinated through a candidate. In short, Citizens United now allows independent expenditures like Hillary: The Movie, which was financed without coordination or influence from either the McCain or Obama campaigns. While Mr. Frazier corrects the error in this issue, this once crucial distinction, originally promulgated in Buckley v. Valeo, is now regarded as an irrelevant semantic distinction. Expenditure, contribution; tomayto, tomahto—it’s all a “corrupting” influence on American democracy.

Also, the decision in Citizens United does not depend upon a holding that a corporation is a “person” with a right to free speech. A corporation is not a person with the right to speak but a group of people with the right to speak collectively. The right for a corporation to speak in elections flows inexorably from the right of individuals to speak and to form associations through which they convey their voices. Signing a letter “Sincerely yours, the Breakfast Club” does not destroy the right to free speech; incorporating as “the Breakfast Club” no less so. Many commentators who focus on the facile argument that “a corporation is not a person” act as if, when a corporation speaks, the corporate charter gains sentience, grows lips, and voices its opinion.

But, the argument is made, a for-profit corporation is different; it obtains unequal power in the economic sphere by virtue of a government grant of limited liability, and then transfers that unequal power to the political marketplace. Unfortunately, this is a distinction that was not drawn by the law struck down in Citizens United. The ACLU—that dogged enemy of the common man—has consistently been hampered by campaign restrictions and thus filed an amicus brief on behalf of Citizens United. The laws struck down in Citizens United had prohibited the ACLU from publicly challenging encroachments on civil liberties, including FISA extensions and the Military Commissions Act, because the bills were passed within the blackout period (30 days prior to elections). Similarly, in 2006 the Sierra Club was fined $28,000 by the FEC for improper electioneering communications.

Lost amongst the silly invocations of Dred Scott is any serious consideration of whether for-profit corporations have a genuine interest in spending “unlimited” amounts on campaigns. Mr. Frazier posits a situation in which a sin tax is proposed for fatty foods and McDonald’s responds with a massive campaign to oust the representative. This situation is simply incredible. Rather than spend millions, or even thousands, to rid Congress of one paltry representative, it would be in McDonald’s interest to invest that money in the development of healthier alternatives (as McDonald’s has, in fact, done). A proposed sin tax is an indication that consumer preferences may be changing. Any business that responds to a political proposal by campaigning would lose half of its customers (the members of the opposing party) or more (those offended by McDonald’s political involvement). Besides, how much help can one representative give you, especially if you don’t know how the campaign season will turn out and who will control Congress when it’s all over? Although money can help win an election, it does not guarantee victory. In general, investing in election commentary is a very bad business move for nearly any for-profit corporation. As Michael Jordan once said when asked why he doesn’t get involved politically, “Republicans buy sneakers too.”

The left is rightfully concerned about a corporatist government. But, the crosshairs are aimed at the wrong source of corruption. Corporations spend ten times more money on lobbying than they do on elections. Their actions speak louder than Mr. Frazier’s words: lobbying is where the money pays off. To for-profit corporations, elections are political sideshows; regulators and agencies are the midway. In reality, the corporate speech that was stifled by BCRA (McCain-Feingold) was that of ideologically motivated corporations who collect donations and dues in order to perform the political version of Brian’s letter in “The Breakfast Club”; combine their voices, choose the “Brain” to write it, and sign it collectively. This is healthy and helpful political activity. But, for many representatives, silencing these ideological corporations was a central motive behind voting for McCain-Feingold.

The Dangers of Campaign Finance Reform

Campaign finance reform is not just constitutionally repugnant, its consequences threaten our democracy. Most paradoxical, however, are the unintended consequences that result from campaign finance reform—consequences that run precisely counter to the desires of reformers. Elections have not become more “fair” but less fair; political speech has not become less acerbic but more so; democracy has become less responsive to the “little guy”; and, by ensconcing incumbent politicians in increasingly unassailable positions, corruption has been given fertile ground to grow. Fighting the specter of quid pro quo corruption has produced the very real monster of a corruption of power. Increasingly, campaign finance reform is ensuring that we are ruled by an oligarchy of individually wealthy incumbents who are inured to the voice of the people and will only feed us an endless supply of watered-down political pap. While fighting a windmill the reformists are ignoring the dragon creeping up behind them—a dragon they are creating.

The constitutional is being recast as the technical. Now, 800 pages of federal regulations determine when and if a speaker will be able to voice their political opinion. Under the guise of subtle tinkerings, small adjustments, and “harmless” regulations, the core values of the First Amendment are being eroded. But, we should expect these wolves to come dressed in grandma’s nightclothes. The Alien and Sedation acts of 1798 were facial abridgments of free speech that (hopefully) would not be even attempted by a modern Congress. However, the intention behind the Alien and Sedition acts—to protect those in office—is always in the minds of those who hold power.

Defenders, and even courts, are consistently supplying reasons for campaign finance legislation that are not supported by the legislative record. This is repugnant to the well-established rule of strict scrutiny—that the compelling governmental reason must be the actual reason for the legislation rather than one supposed by the courts—and it “protects” core political speech with something resembling the flimsy and deferential standard of rational basis. It takes little effort to search the legislative record and find that the BCRA was pushed not to eliminate supposed corruption from independent expenditures, but with the explicit intent to “clean up” political discourse by limiting political speech. This makes the straw-man “money is not speech” argument even more disingenuous. The representatives knew that by limiting money they were limiting speech and, moreover, this is what they intended to do.

All things being equal, incumbency is the single best predictor of which candidate will win an election. In some sense this is inevitable. Incumbents have name recognition, are able to utilize policy to funnel money to their district, enjoy taxpayer paid mailings, and, when they call a press conference, the press is guaranteed to show up. Incumbency advantage is yet another reason to believe that congressional reformers don’t really care about election “fairness”; if they did, they would double or triple the existing contribution limitations for those challenging an incumbent’s office. I won’t hold my breath.

To overcome the incumbent advantage a challenger must rely on money, volunteer work, a little luck, and certain types of ads, so-called “negative attack ads,” to gain traction. It costs a lot more money to put forth a positive, coherent campaign message rather than simple “negative” ads that examine the record of the office-holder. Much of that money has been dried up by campaign finance reform. Thus, campaign finance has arguably made campaigns more negative.

Part of campaign finance reform seems to be motivated by a desire to raise political debate to a level Alistair Cooke would be proud of: “Gentlemen, let us retire to the parlor for a respectful discussion over tea, crumpets, and a nice brandy.” With this in mind the BCRA targeted “attack ads” that criticize the government and those holding power. In the appalling words of Senator McCain, “they [ads from independent expenditures] are negative. And they are negative to the degree where all of our approval ratings sink to an all time low. (emphasis added)” Truly, low approval ratings for incumbents is an evil that must be cut off at its source. We can only praise, and cannot bury, our Caesars. This should come as no surprise. Indeed, it would be a shocking day when a government passes a law that criminalizes speech reverent of those in power.

After New York Times v. Sullivan it is clear that every single one of those “dangerous” negative attack ads would be protected by the First Amendment from any attempt to challenge them individually. Limited in this regard, those in Congress consciously chose another tactic: to dry up the funds available to produce such ads. And, prior to Citizens United, the Court had upheld their blatant First Amendment run-around and endorsed the fallacy that the protection afforded each individual ad is not afforded to the aggregation of those ads.

But, amazingly, it gets even more insidious. Many Congressmen realized that by eliminating the speech of organizations they disagree with they could affect public policy in the “proper” direction. Thus, motivations usually reserved for such esteemed governments as North Korea and Soviet Russia (i.e. suppress the speech of those who oppose your policies) became part of US law and, until Citizens United, were upheld by the Court. Number one on the hit list was the NRA. In the words of Rep. Schakowsky, “If my colleagues care about gun control, then campaign finance reform is their issue so that the NRA does not call all the shots.” Regardless of how you feel about gun control, censorship is not the way to win a debate.

And what are the results of all this political Machiavellianism? Well, precisely what they wanted. Since Buckley was decided in 1976 we have seen the winning percentage of challengers decrease by 52.8% in the House and 50% in the Senate. The number of close House races (margins of victory 2.5% or less) has decreased by 31.8% and 33.8% for the Senate. American democracy is becoming less competitive.

Moreover, contribution limitations are making personal wealth a near prerequisite for holding office. John Kerry injection of his wife’s millions into his lagging campaign helped clear the path to the presidential nomination. The Senate, with an average wealth of $1.7 million per Senator, has nearly 60% millionaires. When a challenger defeats a Senator they have contributed an average of $3 million to their own campaign. We’re not only a less competitive democracy, but we are becoming one that is increasingly verging on an oligarchy. No more Mr. Smiths can go to Washington; the Daddy Warbuckses are taking over.

Campaign finance has also helped perpetuate another oft derided aspect of American democracy, political stagnation. In 1968 Eugene McCarthy’s strong showing in the New Hampshire primary helped unseat the sitting Democrat president, Lyndon B. Johnson, as the presumptive Democrat nominee. McCarthy ran on a platform radically different than mainstream Democrats—he advocated withdrawal from the war in Vietnam. In many ways, McCarthy was a Dennis Kucinich or Ron Paul of his time—a politician that, while calling himself a member of one of the two parties, forwarded a message not congruent with the party line. But his message resonated with Democrat voters.

That is, we now know that his message resonated with Democrat voters. Starting out, his campaign was a huge gamble. He needed the power to tell Democratic voters about his different vision for society. That power came from money and that money came from 6 donors who all gave 6-figure donations. Not surprisingly, Eugene McCarthy, despite being a life-long Democrat, was categorically against campaign finance regulations.

Imagine a world in which musicians had to engage in a type of winner-take-all contest in order to continue making music. All the country’s musicians have an election-like proceeding where, for 6 months, they see who can earn the most money. There are “contribution limits” that limit consumers to purchasing only one CD per band and, like elections, there is no second place. The winner’s music will command the airwaves for the next four years.

What type of watered-down, insipid, twaddle would you expect to come from this process? Due to the contribution limits musicians who push the boundaries of creativity cannot make up the contributions they lose when they offend the mundane aesthetics of the mainstream. Those who like outsider music cannot “vote louder” by buying multiple CDs or just giving the band some touring money. Perhaps if the mainstream gets a chance to hear the music they will latch on to it. Without money, however, they are likely never to hear the music. The majority of people lie at the middle of the bell-curve and that area is where every musician will play to if they want to survive the competition. Consequently, we’d all be listening to Britney Spears during four years of unmitigated hell.

Where have the most novel ideas come from in the past 20 years of American politics? From two candidates, Ross Perot and Steve Forbes, whose personal wealth allowed them to be unconcerned with the popularity contest. They, like McCarthy, dived into a political milieu to stir it up. At the outset, no one knew if they would have been successful but they needed money to try. Because of contribution limits there is little room for a modern day Eugene McCarthy to upset our politically stagnant mainstream. Instead we get weird rich guys who are bad candidates and bad politicians but are prohibited from giving their money to good candidates. I, for one, do not want the task of political innovation to depend upon eccentric rich guys with money to burn. Reformers, and the courts, are continually warning against the dangers of a government that appears corrupt and unresponsive. Instead, they should wonder if increasing political stagnation contributes to this distrust as much, or more, as contributions do.

Conclusion

In the original round of oral arguments the Solicitor General told the Court that the BCRA empowered the government to ban books if published by a corporation within 30 days of an election. The government later backed away from that position. But, if “equalizing political voices” is your goal, then there is no principled reason why the government couldn’t ban books, as well as media outlets that support candidates, record labels that sponsor “Rock the Vote” concerts, Oprah from endorsing a candidate, and many other benign and beneficial activities. No principled reason, that is, except for the First Amendment. Reformers, however, increasingly see the First Amendment as a grant of government power rather than an explicit limitation of it. We’ve entered a bizarro world of First Amendment jurisprudence in which “Congress shall make no law…” evidently does not include 800 pages of federal regulations enacted and designed by lawmakers to limit political speech. The left often has a disturbing amount of trust in government. We should understand, however, that our trust should be at its nadir when granting those in government the power to control the forces that determine whether they will have a job after the next election cycle.

It is time to end this increasingly Orwellian world in which benevolent governmental forces are trusted to control the parameters of political debate for our own good and not for theirs. Citizens United did not go far enough towards rolling back onerous and unconstitutional campaign finance restrictions. But, even if you disagree with this statement, the fears expressed by Mr. Frazier and others of a “corporate oligarchy” are exaggerated, unwarranted, and unrealistic.

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