Friday, July 01, 2011


❄ This post, and other ‘PLAIN TALK’ posts on this blog, describe in plain language the current Republican Party aims and methods, which I consider a perverse exercise in political design. ❄

Presidents and legislators—and in some states, judges—require vast and growing sums to run for elective office. The link binding candidates to donors appears to be yet stronger in the wake of the Citizens United Supreme Court ruling, which has the effect of freeing corporate donations to political purposes.

The Question

Can Members of Congress be bought? Can control of the US government be bought? And if so, what can be done to prevent its being for sale?


I’ve discussed this issue, first in a posting in 2005:

❄ End the Plutocracy?
“Money is the mother’s milk of politics.”
“The United States is not a representative democracy, but a plutocracy.”

At that time I wrote: “I’m drawn to the ‘pull-only’ rule: rather than candidates’ buying vast advertising time, telephone banks, and lapel pins, why not confine them to their web sites and let each citizen decide whether to look at their messages or ignore them? ‘Don’t call me, I’ll call you.’ ”

And on reflection I’m even more intrigued by putting an end to competitive spending on elections. Locally-financed personal appearances could be archived to web sites, extensive and elaborate but not costly. Anyone, any group, could recommend, interpret, counter, or otherwise voice it’s views about candidate sites.

Does Citizens United [Note 1] create a new imperative? On 21 January 2010, to great controversy, the US Supreme Court issued its decision in Citizens United v. Federal Election Commission. Citizens United argues that §441b of the US Code, which restricts specified corporate “electioneering communication,” is unconstitutional as applied to a documentary film critical of primary candidate Hillary Clinton.

What is important in this decision, then, is not the narrow circumstance around which Citizens United composed its case, but the Court’s removing a key precedent in its several-decades’ commitment to the constitutionality of specific legal limits on corporate political giving.

Nor is it an accident that this case came forward, and was argued before the Court by a well-known partisan of conservative interests, GW Bush’s first Solicitor General, Theodore Olson. The case can be traced directly to the work of a Terre Haute, Indiana attorney, James Bopp, Jr., who told an interviewer that

“We had a 10-year plan to take all this down. And if we do it right, I think we can pretty well dismantle the entire regulatory regime that is called campaign finance law. We have been awfully successful and we are not done yet.” [Note 2]

This opponent of campaign finance law targets not only barriers to giving but also disclosure of donor names and sums. While the decision in Citizens United is only one move, which leaves many regulatory measures in place, the aim is further dismantlement. The end would be a system of legal protection for unlimited secret corporate financing of political candidates and initiatives. Every member of Congress, and Presidents themselves, could be secretly in thrall to hidden manipulators, doing behind the veil of secrecy what figures such as Scaife and Koch have undertaken, with the lesser aid of obscurity and public inattention, in recent years.

In a vigorous dissent to the majority decision in Citizens United Justice John Paul Stevens, writing for four members of the Court, declared that

“The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation.” [Note 3.]

The decision in Citizens United prompted an unusual statement by President Barack Obama in his State of the Union speech to the combined houses of Congress.

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.” [Note 4]

But in an even more unusual reaction, Associate Justice Samuel A. Alito, Jr., seated a few feet away, facing the President, was seen to be shaking his head ‘no’, and to mouth words variously reported as “that’s not true” or “not true.” [Note 5]

But we have to ask: are Justice Stevens and President Obama wrong, or exaggerating the effects of Citizens United? A few days after Obama’s State of the Union message a group of Republicans led by former senator ‘Norm’ Coleman and a senior policy adviser to John McCain’s presidential campaign, Douglas Holtz-Eakin, told the New York Times about the forthcoming launch of an advocacy body they call the ‘American Action Network’. The Times reporter wrote that

“ … the Supreme Court’s decision last month in Citizens United v. Federal Election Commission potentially will allow the organization to take unlimited contributions from corporations and individuals to use to advertise for or against political candidates.

“‘This administration as well as Citizens United — when you combine the two the prospects for funding these types of efforts are greatly enhanced,‘ Mr. Coleman said. [Note 6]

So at least one experienced Republican battler believes Citizens United hands them an edge … and is ready to say so publicly.

And on 27 June 2011 the Supreme Court struck down an Arizona law providing public matching funds under specified circumstances. Critics of the court’s decision charged that rather than promoting free speech, as the court’s majority contended, the court enabled money to overwhelm those without funds. The Chief Justice wrote for the majority that “Leveling the playing field can sound like a good thing. But in a democracy, campaigning for office is not a game.”[Note 7]

Drafting Problem

Would a system like that outlined above—candidates confined to personal appearances and web sites—meet the First Amendment requirement of ‘freedom of speech’? Would it end, or significantly reduce, money‘s influence on politics? Are there other approaches?


[Note 1]:
[Note 2]:  Quoted in David D. Kirkpatrick, “A Quest to End Spending Rules for Campaigns,” The New York Times, 24 January 2010.
[Note 3]:  Citizens United, Appellant v. Federal Election Commission. Justice Stevens was joined by Justices Ginsburg, Breyer, and Sotomayor “concurring in part and dissenting in part.”
[Note 4]:  Barack Obama, State of the Union remarks. Washington, D.C. 27 January 2010.
[Note 5]:  Robert Barnes reported Alito’s response: “ ‘Not true, not true,’ he appeared to say (other lip readers think he said, ‘That's not true’) as he shook his head and furrowed his brow. It is unclear what part of Obama’s statement he was objecting to, although he started shaking his head after the president said ‘special interests.’ ” “Reactions Split on Obama’s remark, Alito’s Response at State of the Union,” Washington Post, 29 January 2010.
[Note 6]:  Jackie Calmes, “G.O.P. Group to Promote Conservative Ideas,” The New York Times, 3 February 2010.
[Note 7]:  Adam Liptak, “Justices Strike Down Arizona Campaign Finance Law,” The New York Times, 27 June 2011.

[Political Design 2011.07.01. Post A29. or]


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