I didn’t intend to return to the topic of campaign finance reform as quickly as this; my last post discussed it as well. But, there’s been some developments in that arena that provide us both a more clear picture of what is wrong with the current way we operate our political system and how beautiful a system it could be. Ironically, the same individual provides us both of these understandings: Chief Justice John Roberts of the Supreme Court of the United States (SCOTUS).
If you don’t have much time to read through the whole post, please just scroll down to the heading So, What Should We Do About It?. Obviously, I think exploring our current political situation is important; I wouldn’t be writing about it if I did not. But, what I share with you all after that exploration is really the point. If you read only one (more) part of this essay, please make it that one.
First, let me be clear: I am not a lawyer, constitutional or otherwise. I am a SCOTUS junkie, though, regularly reading the opinions and dissents for both the higher profile cases and for those in which I’m simply interested. By no means does this indicate, however, that I have enough grounding in law to perhaps fully understand the nuance involved in that profession in the same way that the average lawyer probably couldn’t produce online web applications as well or as rapidly as I do. We all have our specialties.
So, to help augment my understanding I turn to other sources in addition to the primary source material provided by the court. Professors, other lawyers, radio personalities (along with their biases) can all illuminate what is otherwise a fairly murky situation.
Back in April, the decision in the McCutcheon v. Federal Election Commission case was made by the Court. In this decision, it struck down so-called aggregate limits on campaign finance spending. Back in 1971, the Federal Election Campaign Act (FECA) instituted two types of limitations of spending by people in campaigns: base limitations and aggregate limitations. The former simply limit the total amount of money that one person may give to another. The Court wasn’t asked to comment on these. Aggregate limits, however, control the sum total that any individual may donate within one campaign cycle to all candidates and committees. On these limits the court did weigh in and, as I said above, they deemed them unconstitutional.
This all came about because McCutcheon contributed to 16 different federal candidates and wanted to do so for 12 more in the 2012 campaigns. He donated within the base limits to those 16 people, but in doing so, he had reached his aggregate limit and could, therefore, no longer donate based on the rules in the FECA. He sued and, over time, it rose to the level of the Supreme Court with the result described above.
So what does all this mean? Effectively, rich people are now even more important to our political process than they were before. In my last post, I found a statistic from CNN that reports you needed $10.4 million to win a seat in the US Senate in 2012. Not too many of us have that sort of money lying around. So, if you want to win your Senatorial race, you’d better make some rich friends. Now, without aggregate limits, candidate A can get eir donation from eir favorite rich person, but e can also share that rich person’s contact information with candidates B, C, D, etc. Since our rich person can donate to as many candidates as e wants to, there’s no reason e can’t just donate to them all! Sure, any individual candidate is not helped out that much more, but imagine how much this person would be able to donate if you start to consider the overall party coffers that e may be strengthening! But don’t take my word for it, there are many different examples of people who worried about this, too.
What Did the Court Say?
Above, I noted that Justice Roberts provided us both a stark reminder of our problems but also of the beauty that a democratic system might enjoy. Here, then, are his words:
[We] have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access … are not corruption.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 360 (2010). They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.
The full decision can be read here.
Honestly, I agree with him. But, I think that there’s a flaw in the Court’s current understanding of what “support” means with respect to the feelings of “general gratitude” that a candidate may feel towards those who support em. It’s my feeling, that the original intent of our democracy was for that support to take the form not of large-dollar campaign contributions but rather the voice (i.e. the vote) of the people. Our Constitution begins, after all, with “we the people” not “we the rich people.”
If we read the above excerpt from the SCOTUS decision (it’s 94 pages long, so settle in if you want to read it all) with the understanding that it is the votes earned by a candidate that creates their feelings of gratitude then suddenly what seems so corrupting (to me, if not to the Court) becomes a thing of beauty. In short: it’s not that I disagree intrinsically with the idea that a candidate may feel inclined to vote in the direction of eir supporters, only that way in which that support takes shape.
If you’re interested in a larger exploration of this passage of the opinion as well as some other areas, I invite you to take a listen to this excerpt from Dan Carlin’s radio program (and podcast) called Common Sense. I must admit that I’m not much of a Dan Carlin fan but this clip was included within the Best of the Left podcast and it sheds some light on this decision.
So, What Should We Do About It?
If you listened to the Dan Carlin clip above, you note that Carlin indicates the Court is leery of attempts to even begin the process of campaign finance reform. But, frankly, that’s not up to them. It’s up to us.
I’ve talked about Lawrence Lessig before. But he’s back in the limelight again and still seeking to find away to introduce such reforms. This time, instead of a march through New Hampshire in January, he’s seeking to use the our unbalanced system against itself.
At the time of this writing, a mere 12 days after beginning his MayOne campaign, he’s raised $886,125 dollars with 19 days remaining to raise the final $113,875. If, like me, you’re willing to help out, you can pledge now.
This sort of thing is a risk. Lessig knows it. The matching funds might not materialize. He might not make it to the million this month. Or, the five million he seeks later. Plus, this sort of small-dollar PAC isn’t really the way it’s usually done.
Derek Willis at the NY Times wrote a column on Lessig’s plans. In it he shared some sobering statistics:
Most super PACs are funded by relatively few donors. The John Bolton Super PAC … has raised $1.3 million this cycle from 14 donors, along with $1,400 in contributions of less than $200 each. Nearly 40 percent of the money came from one person, Warren Stephens, the investment banker. Of the 35 super PACs that have raised at least $1 million from individuals this cycle, just six of them have done so with significant small-donation support.
Granted, if the last 12 days have been evidence of what we could see in the next 19, that last number might be going up to seven.
This is not going to be an easy thing. Maybe you can help out?