Beyond Channeling Money

August 9, 2016

This is the sixth and last in a series on Money in Politics

Money finds ways to influence the political system despite our efforts to prohibit or replace it. It’s like a balloon that bulges wherever it can, or water that finds any path to cause trouble. Limits on contribution and gifts matter. But prohibitions aren’t enough. They just force politicians to spend more time looking for money and find ways around the limits. Even public funding for election campaigns isn’t a magical solution that will banish every problem in a puff of public green.

There are many problems we can solve to improve the rules of self-government. Employees deserve some protections. Employers can and some do pressure workers, make them go to some candidates’ talks, or give them work to do in political campaigns. Employer requests are hard to resist for fear of demotion, or other damaging consequences. We restrict sexual invitations to workers to avoid subtle or not-so-subtle intimidation. For similar reasons, employees deserve political protection on the job.

Still, we need more than prohibitions and public money. Parties were once the people’s answer to the power of money. Without parties, the wealthy and well-connected would rule. Parties were promptly corrupted, so Americans adopted primaries. Primaries shifted power to individual candidates and their organizations, and shifted power from the center of the voting population to majorities of primary voters, who tend to be much more extreme. That offers what Barry Goldwater, in his losing 1964 presidential bid, called “a choice, not an echo.” But it can also polarize politics and create a politics that almost nobody wants.

Most important for the future is how we prepare ourselves. We’ve been telling each other since the Revolution that we need an educated public. Unfortunately, many schools no longer educate people in relevant ways. We graduate students who have little idea who or how government is run, what our history is, or any understanding of the economic and social issues of our time. We complain that immigrants will not respect our ways, but leave the majority of natural-born Americans ignorant of how America came to be America. We need to do better.

What I see as truly encouraging is that this election has drawn many people into politics out of a real sense of public duty. I remember earlier waves like those that Adlai Stevenson, John Kennedy, Ronald Reagan, the civil rights and feminist movements drew into politics. I hope those of you whom Hillary, Bernie and Obama drew into politics will stay active and not become discouraged because all our dreams cannot be achieved quickly. I hope you’ll enjoy mixing with others door to door, in community meetings, house parties, barbeques, and otherwise staying in touch with the people.

I do think we can make life better. I don’t think we should expect a political heaven on earth. A large part of politics is about resolving differences of perspective, interests and needs – many of them legitimate on all sides. It’s not just about getting things done. It’s also about disagreement, conflict and compromise. Few of us ever get complete victories, and probably shouldn’t. But finding decent solutions to problems that divide people is also the challenge and one of the truly honorable tasks of democratic government.

— This commentary was broadcast on WAMC Northeast Report, August 9, 2016.


Is Culture the Solution to the Campaign Finance Problem?

August 2, 2016

This is the fifth in a series on Money in Politics.

Americans love prohibitions rather than investments. That’s tragic because prohibitions often work poorly while investments pay off.

Antipathy toward investments grew in the backlash to the Civil Rights Movement. Politicians used crime as a wedge issue and the riots facilitated their strategy. While liberals talked about the causes of crime, and the things we could do to deal with it, conservatives had no patience for what they called “coddling criminals.”[1]

In the 60s we still invested in prevention,[2] afterschool activities, and treatment. But the War on Drugs substituted a focus on condemnation and mass incarceration.[3] Prohibitions were in and expenditures became “waste.” We’re turning back now because we have discovered it is expensive to warehouse people.

Reagan generalized, telling America that “Government is the problem.” His attack was designed to end the War on Poverty that President Johnson inaugurated. The war on taxes was a way to kill otherwise popular programs.[4] Reagan’s successors were trapped by the effectiveness of his anti-government and anti-expenditure rhetoric. G.H.W. Bush, forced into assuring the American public that he would not raise taxes, told the public, “Read my lips: no new taxes.” Prevailing anti-expenditure sentiment forced President Clinton to reduce relatively successful federal programs. And George W. Bush, continued the same theme, telling the people repeatedly that you can use “your money” better.

Politicians are saddled with the curse of being part of a system of government the people came to despise. Revelations of the damage done by campaign funding deepened that feeling and curdled reactions to the one method of campaign funding that would not lead to more corruption – public funding of political campaigns. Public funding of presidential election campaigns, through small federal tax credits, came about partly in reaction to Watergate. But support for the program has declined steadily since.

Americans have not always been as hostile to government as they are now. Responsible and effective government were this country’s major contributions to civilization, coming out of the 1776-1783 revolutionary struggle and the birth of the Constitution in 1787. From the Eisenhower Administration, when people were first polled about confidence in government, and well into the 60s, three-quarters of the public trusted government most of the time. Only twenty-five percent of the public do now.

But now, Americans have decided that government and politicians are bad. People don’t want to give politicians anything – except for funding police and the armed services. Making public funding possible is intertwined with these larger questions of whether government can be trusted with anything. President Obama and Secretary Clinton have been talking about smart investment. The public has little patience for failure, even though success, public or private, usually follows failed experiments.  So the future of public funding is linked to changing attitudes about government, politicians and the possibility that they can make smart investments. Many things could be done better, and ultimately more cheaply, if we were willing to invest.

— This commentary was broadcast on WAMC Northeast Report, August 2, 2016.

[1] On wedge issues, see Christine Watkins, Gun Control: The Debate and Public Policy, quoting Eric Zorn, “Librarians Take a Risky Stand on Full Access to the Web,” Chicago Tribune (June 5, 1997).  On changed attitudes, see Michael J. Robinson,  Television and American politics: 1956-1976, Public Interest, Number 48, 3-39 (Summer 1977).

[2] See Nat’l Comm. on the Causes and Prevention of Violence, Final Report: To Establish Justice, to Insure Domestic Tranquility (1969).

[3] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).

[4] David Stockman, The Triumph of Politics: Why the Reagan Revolution Failed (1986).


Public matching funding of election campaigns is crucial

July 26, 2016

This is the fourth in a series on Money in Politics. We’ve looked at the way that our present system of campaign finance results in our being fleeced by businesses that use laws and regulations to protect them from competition and from lawsuits. Think about the repeal of legislation that regulated the financial services industry, or the NRA which got legislation to prevent funding for studies of gun violence, the companies that blocked state laws defining duties in their industries, the loosening of federal antitrust law, or a plethora of tax breaks. All of that was facilitated by grateful lawmakers, grateful for campaign help, contributions or expenditures, which made their elections or reelections possible.

We’ve also looked at restoring limitations or prohibitions on those injections of money into politics, and the complexity of reinstating limitations without spilling over and damaging what should be protected speech, press and association.

There is another approach that doesn’t threaten the press or public interest associations and doesn’t hand judges or anyone else malleable discretion to decide who can and cannot speak and how much. The alternative is to provide the funds, either by matching small donations as is done in New York City or allocating public funds for campaigns to those candidates who agree not to raise their own funds.

Public funds relieve candidates from dependence on large donors. Matching small donations reconnects candidates to small donors gathered in house parties, barbeques and similar events. Instead of spending their time courting major donors, candidates seeking matching funds would have to spend time with their constituents – what a quaint concept!

There are many programs using matching funds in place now in states like Arizona, Connecticut, Delaware, Florida, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Vermont, and West Virginia and cities like New York and Los Angeles.[1] Some states matched large expenditures by opponents before the Court rejected that.[2] New York City provides $6 for each $1 contributed in small amounts, resulting in the vast majority of funds deriving from small donations. The match makes each small donor that much more valuable to the candidate. And the formula can be designed to match inflation so that the majority of candidates keep choosing the public matching system.

The research so far reveals that matching programs increase candidate efforts to reach out to constituents, and minimize the role of large donations, although plan details create significant differences in effectiveness.

The Court long ago agreed that public funds can come with strings – if a candidate takes public funds, the candidate may have to agree to an expenditure limit or a restriction on the donations it can accept.

The public funding approach doesn’t create the major problems, distinctions and discretion that prohibitions do. Savings to the public can be huge. The cost of American political campaigning is much less than the largesse which politicians can make available to contributors and supporters. That means that we could fully fund American political campaigns for much less than those campaigns cost us in legislation and regulations that bilk us of vast amounts of money. It should be a no-brainer.

Next week, why it hasn’t been.

— This commentary was broadcast on WAMC Northeast Report, July 26, 2016.

[1] See generally the Brennan Center for material on public financing.

[2] Arizona Free Enterprise Fund v. Bennett (2011) and McComish v. Bennett (2011).


Proposed Amendments to Overcome Citizens United

July 19, 2016

This is the third in a series on Money in Politics. Last time we discussed the difficulty of getting the Court to overrule Citizens United. Because of that, several constitutional amendments have been proposed as joint resolutions and introduced in Congress in order to undo Citizens United and overrule the idea that a corporation is a legal person. After studying them, however, it became clear they have been so sloppily drafted that no one could tell you what they would do.

None that I’ve seen addresses the associations we join. Political, civil liberties, civil rights, and environmental organizations, and professional associations, all take stands on candidates or political issues. The ACLU went to court years ago to protect its ability to take out an ad over the impeachment of President Nixon.[1]

All except the smallest are incorporated and are protected by the right of association. The First Amendment protects speech, press, assembly and petition. In combination, that’s what our associations do to influence public attitudes about major issues. They incorporate to outlast their founders, use the courts, open bank accounts, organize membership and leadership, seek tax-exempt status and protect members from liability for any mistakes the organizations make.

Those associations matter. The lasting impact that people like Rosa Parks and Martin Luther King had on the Civil Rights Movement depended on the organizations that did the advance work, and drove home the meaning of what they and other great leaders of the Movement did. That’s true of most successful political movements. Yet the proposed Amendments stop after denying that corporations have constitutional rights and authorizing legislatures to regulate them.

A literalist could read the Amendments as superseding and repealing all previous protections for the organizations we rely on to reform politics, the environment, civil rights and just about everything we care about. Nothing in the proposals protects them.

Sometimes courts hang on to interpretations of older text and neuter newer language, as the Supreme Court has with language in the amendments passed in the aftermath of the Civil War. In the absence of any language about associations, it is impossible to say what the courts would do to the proposals regarding associations.

One proposal denies that it limits the people’s rights, but it is attached to text which limits what the Court defines as part of the people’s First Amendment rights. The meaning of that exception is mysterious, just authorizing courts to figure it out.

Only two amendments mention a free press. They merely say they “shall [not] be construed to alter the freedom of the press.” That’s nice but the exceptions swallow the proposals because much of political campaigns is in or can be done by the press. Whoever controls the distinction controls the result, whether authorities can squelch the press or the press becomes the next form of improper power.

Corporations often set up subsidiaries for otherwise regulated functions, such as associations or media companies, like what Murdock did with Fox. Some media companies are owned by conglomerates. Many associations set up separate organizations for tax purposes. The NAACP set up Thurgood Marshall’s organization around 1940 to separate its legal work from other organizational work. Lawyers fashion ways to live with rules. So what would a press exception do?

Nor should media companies and political associations have a monopoly on political speech. The law should be neutral and should not protect the speech of some while shackling the speech of others.

Whatever you think of the Roberts Court, and I’m no fan, these are serious issues and no proposal addresses them. Instead they provide feel good language covering sloppy and dangerous clauses.

— This commentary was broadcast on WAMC Northeast Report, July 19, 2016.

[1] Amer. Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973).


Democracy Amid the Battle of the Oligarchs?

November 16, 2015

The Court recently decided that states can restrict campaign solicitation by judges but only judges. It left all the rest of its protections of economic privilege in place.

Inequality in the United States is making democracy increasingly unsustainable and unlikely. It also seems unlikely that Americans in sufficient numbers will rebel before it’s too late. The gun rights folk will, if anything, protect the current distribution of wealth, and enforce their prejudices. Liberals aren’t sufficiently united – there are race liberals, economic liberals, and big money liberals. That’s a big tent, not a movement. Conservatives believe in democracy in towns they control, and join the attack on giving the ballot to anyone else. They put institutions that they rule – specially chosen tribunals, faceless and ruthless markets – ahead of democratic government, hiding their contempt for democracy behind the claim that government, democratic government, is the problem. So behind all the hoopla of the Tea Party there is a real threat that this government of, by and for the people will perish from the earth.

Then what? At the turn of the last century democracy was rescued from abroad, by unrestricted immigration that turned into a tide of votes – organized by totally corrupt political parties but organized effectively. The corruption temporarily led the wealthy to put cleaning up government ahead of cleaning the pockets of the poor.

But here’s the point, when the wealthy and powerful take control of the whole shebang, political money, jobs, the media, only the wealthy can take it down. That means that democracy will return only when the wealthy battle each other – and when the Gods fight, the heavens rain fire.

What could start such a battle among the wealthy? Kevin Phillips wrote about the way that different national Administrations shifted wealth among sectors of the economy – from mining and manufacturing to oil and finance.[i] So one option is to take sides among the giants. We argue about football teams. Why not fight about who gets wealthy; maybe they can be sufficiently provoked to provide a little democratic space. Remember it was the kings of Spain and Portugal who restored democracy to their domains, not the Republican army.

Short of that, we could play for the patronage of the moneyed people, trying to figure out what little we can do for them so they will brush us the crumbs off their table. Welcome to the so-called democracies of Central and South America, often described as clientilistic democracies by political scientists. Democracies they are not. They are competing bands of hirelings and sycophants fighting for the right to root for the winning team and pick up the t-shirts, ball caps and plastic trophies of victory.

So are you on the oil, gas and pollution Koch brothers team? The casino team of Sheldon Adelson? The financial teams of Warren Buffet or George Soros? The electronics team of Bill Gates? Step right up ladies and gentlemen; it’s going to be a war of the Gods. There’ll be droughts, fireworks, earthquakes, and lots of blood, folks, so get yourselves on the right team.

We could try to pull the Supreme Court off the ramparts of privilege and regain control over the use of money in politics. Or we could hope for the best ‘til Brutus assassinates Caesar – though that could lead to consolidation of tyranny as it did for the Romans.

Can we rally to save the planet and save democracy? As we used to say in Brooklyn, before the Dodgers finally won the Series, “ya gotta b’lieve.”

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics (NYU Press 2016). He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. This commentary was broadcast on WAMC Northeast Report, November 10, 2015.

[i] Kevin Phillips, Wealth and Democracy (Random House 2002).


Democracy’s Future in America

June 2, 2015

The Court has now decided that states can stop judges but only judges from personally asking for campaign contributions. It left all the rest of its protections of economic privilege in place.[1] Corporations can use treasury funds to flood the airwaves with political ads. Donors can hide their contributions behind a variety of specialized corporate entities. The one-tenth of one percent of the wealthiest Americans can dominate American politics directly and through their domination of corporate treasuries.

As I explained last week, inequality in the United States is making democracy increasingly unsustainable. When the wealthy and powerful take control of the whole shebang – political money, jobs, the media – the mass of the public is left with few resources to control their government, while the wealthy and powerful have enormous resources at their disposal to control the people.

In addition, democracy is fairly explicitly under attack. Conservatives attack the voting rights of any who might vote against them. Corporations use arbitration clauses in consumer contracts and international treaties to sidestep democratic decisions and make it easier for them to tear down environmental, labor and any other regulation that the people want but the corporations dislike. Their argument against regulation of markets is a euphemism for rules that favor whatever they want to do. But their point is that democracy has no right to interfere. And they hide their contempt for democracy behind Reagan’s claim that government, democratic government, is the problem.

Both these direct attacks and the distortions of wealth on the political process create a real threat that this government of, by and for the people could perish from the earth, undermined by control over speech, press and politics and squeezed out by untouchable markets and the exclusion of democratic decision-making from anything corporations care about.

Only the Tea Party seems prepared to rebel and their exclusionary politics adds to the problem. The gun rights folk will, if anything, protect the current distribution of wealth, enforcing their prejudices. Liberals – race liberals, economic liberals, big money liberals – are hardly united.

Under domination from powerful corporate interests, we could hope at best for the crumbs off their tables. Welcome to the many so-called democracies in Central and South America, Asia and Africa, where hirelings and sycophants help control the public for the benefit of their wealthy patrons.

We could try to pull the Supreme Court off the ramparts of privilege and regain control over the use of money in politics. We could fight back by supporting independent radio stations like WAMC. Or we could hope for the best ‘til Brutus assassinates Caesar – though that could lead to the consolidation of tyranny as it did for the Romans and is now doing in the Middle East.

Can we rally to save the planet and save democracy before we have lost them both? As we used to say in Brooklyn, before the Dodgers finally won the Series, “ya gotta b’lieve.”

Next week, the primaries.

— This commentary was broadcast on WAMC Northeast Report, June 2, 2015.

[1] Williams-Yulee v. Fla. Bar, 2015 U.S. LEXIS 2983 (U.S. Apr. 29, 2015).


Prosecuting the Prosecutor – Thank Heavens

April 7, 2015

Here’s a news flash from the Innocence Project that left me both cheering and in tears:

The Texas State Bar filed a formal accusation of misconduct against the prosecutor in the case of Cameron Todd Willingham, who was executed in 2004 for the arson murder of his three young daughters. The bar accuses the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Cameron’s defense, according to a disciplinary petition filed in Navarro County District Court this month.[1]

I was cheering because it is so rare that anyone takes action against any official in the criminal process who wrongfully assists in the conviction and execution of an innocent person. The U.S. Supreme Court blocks any litigation against prosecutors for murderous misconduct. I was crying because the man wrongfully convicted has long since been put to death.

Gov. Rick Perry refused to grant a stay requested by lawyers for Cameron who had been convicted for setting a fire that killed his three daughters. His lawyers asked Perry to stay execution because a report by an independent arson expert found no evidence the fire was intentionally set.

Calling Cameron a “monster,” Perry replaced members of a commission that dared to review the finding of arson.

At the trial, a jailhouse informant testified that Cameron had admitted the crime and that the informant had not been promised anything by the prosecutor for his testimony. Later a letter surfaced in which the informant reminded the prosecutor of his promise of leniency on other charges.

For me, there are so many lessons. One is that innocent until proven guilty is more than a slogan. Another is that the people who are supposed to be enforcing the law are sometimes actually lawless, doing great harm. A third, is that independent outside investigation of the behavior of the police and the prosecutors is a crucial form of accountability in a democratic society. And a fourth is that it is important that independent groups have the courage to follow up and do their best to right those wrongs without being attacked because they are impartially investigating people whose job description makes them seem sacrosanct.

When she was told that the state bar was taking action, Cameron’s step-mother responded: “Who would have ever thought that all this corruption would happen in small-town America?”

There’s another stereotype that needs to go. The devil lurks in all communities and among people of all colors. Cameron incidentally was white. A decent, honest, law enforcement system is important to all of us without regard to race, sex, faith or any other aspects of our background. And if they could do that to a white family, what kind of justice do we think our African-American brothers and sisters are getting.

To me this is a reflection of the problems we have been addressing with respect to police killing of unarmed people, even a child recently, and the Supreme Court’s indifference to injustice in what should be a system of criminal justice, not a system of official lynching. We need to be willing to see and stop misbehavior wherever it happens.

— This commentary was broadcast on WAMC Northeast Report, April 7, 2015.

[1] See https://www.themarshallproject.org/2015/03/18/willingham-prosecutor-accused-of-misconduct and http://www.innocenceproject.org/news-events-exonerations/prosecutor-in-willingham-case-faces-misconduct-charges?utm_source=Main+IP+Email+List&utm_campaign=3a08bbb832-2015_February_Newsletter_02272015&utm_medium=email&utm_term=0_016cb74fd6-3a08bbb832-350279237


%d bloggers like this: