Sunday, December 2, 2012

Why We Need Public Financing of Political Campaigns

In the semi-euphoric atmosphere generated by President Obama's reelection and the strengthening of Democratic control in the Senate, some observers could not wait to proclaim the defeat of Super PACs and the flood of corporate cash unleashed by Citizens United. One analysis in the New York Times was even headlined "After Flood of Cash, Big Donors Return Home with Lighter Wallets and Few Victories." The article specifically focused on the cases of Harold Simmons, a Texas industrialist who gave $26.9 million to Super PACs backing Romney and Republican Senatorial candidates; Joe Ricketts, the owner of the Chicago Cubs who spent close to $13 million bankrolling a super PAC attacking Obama over federal spending; Bob Perry, a Texas home builder who poured more than $21 million into super PACs active in the presidential race and Senate battles in Florida and Virginia where Democrats narrowly prevailed; a donor network organized by the notorious Koch Brothers that raised $400 million for tax-exempt groups that are not required to disclose their spending: and gambling casino mogul Sheldon Adelson,  who became the largest single donor in political history by contributing $60 million to the campaigns of eight candidates , all of whom lost. They also could have mentioned Wyoming investment broker Foster Friess, who contributed almost $5 million to groups funding Rick Santorum, such as the Red White and Blue Fund, FreedomWorks for America, and Leaders for Families and Joseph Craft, a Tulsa, Oklahoma coal baron, gave $2.1 million to American Crossroads and $500,000 to Restore Our Future. Adelson, who has an estimated net worth of $21.5 billion, contributed his millions to such innocuous-sounding organizations as Winning Our Future and Restore Our Future. He first supported Gingrich and then Romney. He told a Norwegian reporter that "I'm against very wealthy people attempting to influence elections, but as long as it's doable, I'm going to do it."

Similarly unproductive were the efforts of the country's largest "trade association" and lobbyist, the U.S. Chamber of Commerce. According to the Center for Responsive Politics the Chamber spent tens of millions of dollars on pro-business, mostly Republican, candidates in 48 Congressional elections and backed the eventual winner in only seven of those contests. Once an 8oo pound gorilla, says a spokesman for Chamber Watch, a union based group critical of the Chamber's political practices, "now they're a 500 pound wounded gorilla." If you find that assessment reassuring, you obviously are not aware of how much mayhem can be inflicted by a 500 pound wounded gorilla. One is almost tempted to become complacent and assume that we have very little to fear in the future from such politically inept puppeteers.

 That, however, would be a mistake of disastrous proportions!!                

Whatever else rapacious right-wing billionaires are (and the possibilities are endless), they are definitely not stupid nor overly scrupulous, when it comes to pursuing their own self-interest--as they perceive it They and their minions will analyze every piece of information possible about the reasons for their defeats and adjust accordingly. They still have most of the country's financial resources and will do whatever is "necessary" to ensure that the "right kind of people" are elected.  They constitute a powerful "third party" (third rail?) in our supposed two party system. Maybe they are really the only political party, pulling the stings of their Republican and Democratic puppets. In any case, the political world inaugurated by Citizens United is till intact and eminently capable of producing much more disastrous outcomes in future elections, as well as the immediate fiscal crisis. Shaken, but obviously not chastened,  the Chamber has already targeted crucial lawmakers, taken out ads and prepared position papers and Internet videos "intended to discourage any debt deal that it believes would deter private investment and free enterprise through higher taxes." Matthew Shay, president of the National Retail Federation, matter-of-factly states that he expects the Chamber "will continue to play an enormously influential role in the debate".        

So what is this "brave new world" created by Citizens United? Essentially, the Court struck down those provisions of the 2002 Bipartisan Campaign Reform Act (McCain-Feingold Act) that prohibited corporations, including non-profits, and unions from spending on "electioneering communications" (read television ads) within 30 days of primaries and 60 days of general elections. Mirabile dictu, the Federal Election Commission reported "a last minute rush of campaign spending with murky origins" from SPs who waited until the last minute to file their reports so as to delay publication of their major donors.  

The decision did not lift the ban on direct contributions from corporations and unions (true to its "Alice in Wonderland" view of things),the Court equated the wealth and power of unions and non-profits with that of for-profit corporations. (As I noted in a previous post, that is the equivalent of equating MLB, NBA, or NFL teams with those of your local high school.) to candidate campaigns or political parties. It did, however, "remove the previous ban on corporations and organizations using their treasury funds for direct advocacy." It did permit them "to expressly endorse or call to vote for or against specific candidates," actions that  had been banned by a plethora of state and federal laws and court decisions. In other words, corporations (and we must not forget unions) could directly engage in partisan politics so long as they did not give money directly to a candidate's campaign committee or to an officially constituted political party organization. This practically mandated the creation of a third genus of political organization, completely "independent" of the two existing forms.. (It is hard to say with certainty which caused which. Did the decision spawn the organizations or did the organizations spawn the decision? It was probably just plain serendipity?) In any case, the decision quickly gave rise to a bewildering "alphabet soup" of new "independent" organizations with wonderfully beneficent names, such as Americans for Prosperity, American crossroads, Hardworking Americans Committee, Patriot Majority, Freedom Works, Club for Growth, the Sam Adams Alliance, the American Majority, Freedom Fund North America, the Franklin Center, and the Arizona Christian Coalition, but dedicated to financing a single candidate or party. It also allowed big donors to "launder" their contributions through foundations whose putative purpose was to promote "social welfare" through education,health care, anti-poverty and drug rehabilitation programs. With mind-numbing rationalization, the Court promised that such organizations would not foster political or financial "corruption," or even the appearance of such nefarious practices. Most of the offending "non-profits" are covered by their 501 (c) (4) tax-exempt status and therefore can keep the names of their donors secret. 

Citizens United was a contentious decision, with five "conservative" judges trumping four "liberal" jurists. The minority opinion,written by Justice John Paul Stevens, presciently detailed seven flaws in the majority opinion.First of all, it asserted that the definition of corruption encompassed far more chicanery than a mere exchange of money for votes (good old fashioned monetary bribes.) It involved mostly the privilege of access to office holders that was impossible to achieve by all but a handful of contributors and lobbyists. Stevens cited a study in which 80% of the public viewed corporate independent expenditures as a means of gaining unfair access. (So much for avoiding even the appearance of corruption.) It also argued that the corporate form bestowed enormous benefits in and of itself: perpetuity, limited liability, access to gigantic amounts of money, no need for internal democracy, no constraining morality or loyalty, and no stated purpose beyond profit=making. He demolished the existence of any such thing as"corporate democracy." Corporate decision-making, especially in the expenditure of funds, was strictly a "top-down" affair. Stockholders and employees have no effective way of preventing corporate money from going to candidates or parties they oppose. According to Public Citizen's Congress Watch, most of these ersatz "independent" organizations were managed by political allies, family members, and employees of the candidates they benefited. Of the 108 Super PACs that had spent more than $100,000 through the middle of October, 65 were active in just one contest. Together, these 65 accounted for 55% of the $375 million spent by SPs in that cohort. Of the 69 SPs devoted solely to Congressional contests, 39 worked on behalf of a single candidate. The Public Citizen report also contains numerous examples of the convoluted machinations that SPs employed to protect the names of their donors, even though their contributions theoretically must be reported. In one case, the candidate was funded by two separate SPs, each of which received nearly all of its funds from the same, identical person. In Pennsylvania, the opponent of an incumbent Congressman was the recipient of $175,145 from the Freedom Fund for America's Future, which, in turn, received 92% of its funding from Fight for the Dream,which got its money from another SP that is allowed to keep its donors secret. The scam was discovered by Public Citizen because its mailbox was registered to the former finance co-chair for one of the candidate's opponents (stupidity or arrogance?) The director of Public Citizen's Congress Watch branded the Court's claims in Citizens United that outside expenditures in elections are not corrupting, while direct contributions are, as "irreconcilable."    

With its wealth and power, corporations and billionaires can actually define legislative priorities and give the impression of widespread support or opposition for an issue that is often contrary to actual public opinion. In other words, it "marginalizes the speech of other individuals and groups". Stevens's dissent also takes serious issue with majority's facile assertion that "there is no such thing as too much free speech," noting that the Court, over the years, has upheld numerous restrictions on absolute free speech, based upon time, place and manner of communication.The dissenting opinion also denied the arguments that such restrictions would allow the government to censor the communications media or prevent state legislatures from enacting their own methods of dealing with electoral corruption. Stevens concluded his opinion with a blanket rejection of the majority decision:
                          At bottom, the Court's opinion is thus 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.                           
The only way to combat the world created by Citizens United is to move along two parallel tracks: 1) work to overturn the Court's decision, which would almost certainly require a constitutional amendment, and 2) reinstate effective campaign finance laws that promote a government beholden to all of its people, instead of to billionaires and corporations. Much easier said than done, of course, but the alternative is the end of any semblance of real democracy. So far as overturning Citizens United by constitutional amendment is concerned, Public Citizen's Democracy Is For People campaign has been working with several grass roots organizations to build momentum. This September, Arlington, VA became the 300th locality to pass a resolution to that effect, while the Connecticut legislature presented a letter to Congress, signed by most of its members, backing such an amendment. In October, the New Jersey legislature adopted a similar resolution. On election day, more than 6 million people across the country voted on ballot measures for such an amendment; almost three-fourths of them supported the idea. Colorado and Montana voters supported ballot initiatives by a margin of 3 to 1. They joined 8 other states that had already adopted such resolutions. San Francisco, Chicago, and more than half the towns in Massachusetts also passed ballot initiatives by similar margins. In November, Democracy Is For The People toured several cities in New York urging support for an amendment and giving presentations promoting the state's 2012 Fair Elections Act. Under this law,the state would provide a 6 to1 match for contributions made by small donors. A  similar public financing option is already available in New York City that has enabled a significant number of low-income,middle-class and minority voters to participate in the electoral process. (Although this may have changed some since 2008, I always used to show my students that more than 90 percent of campaign contributions come for less than 5 % of the people. The New York plan motivated large numbers of people to contribute for the first time, helping to give them a sense of ownership and participation. More than two million people nationwide have signed petitions urging the adoption of an amendment to overturn Citizens United. In September, Congressman John Sarbanes, a Maryland Democrat, introduced a Grassroots Democracy Act, co-sponsored by dozens of other members that would inaugurate a three step system for public financing of campaigns. The first part would create a public funding system that would match five dollars for every one contributed by individuals who contribute up to $100 maximum. The money raised would be available to any candidate who refused SP donations. The second would provide for a $50 tax credit for contributions to political campaigns. The third would establish a "people's fund" to ensure that the public financing could compete against  corporate cash. Connecticut Democratic Congressman John Larson has introduced a sweeping public financing system that would allow Representatives to run viable campaigns buttressed by public funds. Representative David Price, Democrat from North Carolina has introduced a bill to provide a 5-1 match for individual contributions of $250 or less for presidential and congressional elections. Public Citizen other progressive groups are urging other members of Congress to introduce similar measures in 2013.

Would the Adelsons and Kochs of this world allow any measure providing for public financing of campaigns? Not if they and their bought politicians can do anything to prevent it. They understand full well what a sea change in the electoral system that would unleash, and they will do their damnedest to maintain the status quo--and even to make far more undemocratic. Would the "Tea Partiers" and "breadwinner conservatives" support any measures that, on the surface, seem to exacerbate their two most frightening bete noires: an even more powerful federal government and an increasing national debt? But maybe we can change the categories of the conversation. The one thing on which progressives and their right-wing antagonists seem to share common ground: the absolute necessity to eliminate the blatant,pervasive corruption that currently paralyzes our electoral and legislative systems. If we make the elimination of corruption our common lodestar, we can initiate a perpetual--and painful-- dialog that is bound to be more productive than the appalling gridlock that will, otherwise--just get worse. We can begin by becoming  active and persistent participants in the two fold strategy outlined above. What is written on the walls of the Jefferson Memorial?" Eternal Vigilance is the Price of Liberty. 

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