Friday, January 22, 2010

Campaign finance

Count me as one of the few political observers in this country not visibly excited or outraged by the Supreme Court's decision in Citizens United v. the Federal Elections Commission.  And I'm somewhat puzzled by the reactions.  Here's one from Jason Linkins that strikes me as representative:
In one swoop, the court did away with nearly everything in federal campaign finance law, allowing corporations free reign to inject as much money as they jolly well please into federal campaigns.
Yet isn't this what reformers have been complaining about for decades?  Don't corporations already have such free reign?

Yes, officially, corporations have, until now, been prohibited from directly contributing to federal campaigns.  But does anyone seriously believe that such laws have prevented Monsanto, Citigroup, or Exxon from getting money into the hands of political candidates?  There have always been ways around these regulations.  Corporate leaders can "encourage" their employees to donate to preferred candidates.  And when wealthy people run up against an individual donation limit, they can always donate to a 527, a PAC, or some other independent organization set up by campaigns and parties.  Beyond that, these laws have only been trivially enforced and the penalties for violating them are miniscule.

I've often found myself in a strange position on campaign finance rules in that I'd be comfortable with either extreme but I despise the middle.  That is, I'd be okay with total public financing in which no private money could be raised or spent -- that's somewhat more enforceable and it allows incumbents and their challengers to do more useful things.  I'd also be okay with absolutely no restrictions on donations as long as there were instant and accurate disclosure.  But what we've had so far is the pretense of regulation.  We've put our hands in front of a stream of money and assumed that the stream wasn't flowing around our hands.  The money is still getting to candidates; our regulations just make the trail of money less transparent.  The SCOTUS decision moves us in the direction of a bit more opacity openness and honesty.

Now, that doesn't mean this decision is a panacea.  Newt Gingrich must have been joking when he said,
This will, in fact, level the playing field and allow middle-class candidates to begin to have an opportunity to raise the resources to take on the powerful and the rich.
No, it doesn't level the playing field at all.  But the playing field has not been level, and it's a fair question whether that is an attainable or even desirable condition.  Similarly, I can't imagine what Justice Kennedy was smoking when he wrote,
This Court now concludes that independent expenditures ... do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.
Even though there's really no evidence that these contributions are corrupting elected officials, there is definitely an appearance of corruption.  And it does erode faith in democracy.  This decision will likely worsen that.  But I see no need to combat the appearance of corruption with the appearance of regulation.


Jennifer Victor said...

Well stated, Seth. I completely agree. The left seems to think this decision is the end of democracy as we know it; that this decision will go down in history as the equivalent to the Dred Scott decision. Did you see Keith Olberman's comment on it? Hyperbolic. Corporations and union have been using PACs for nearly a century to "influence" politics. This court decision does not change the status quo very much.

I have no idea where you find the time to write an intelligent blog, but it's great!

Robert said...

I also agree in principle, but largely for a different reason (maybe we'll call this a concurring opinion). As Michael Kinsley has written most persuasively from the liberal end, there really is no way around the idea that money is speech, and therefore that restrictions on giving money to promote a particular political agenda are restrictions on the freedom to speak. And these restrictions are on the type of speech that is most highly valued, i.e., political speech. Certainly there is a basis to say that the value of free speech can come into conflict with other important values, and therefore that some regulation is acceptable. But broad restrictions on speech run afoul of the First Amendment.

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