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).


Dealing with Citizens United: Second in a Series on Money in Politics

July 12, 2016

Last week we discussed the importance of taking political campaigns back from big donors. This week we begin examining the complexity of reinstating limitations without damaging what should be protected speech.

Citizens United[1] angered people about corporate legal rights. People want to remove those rights wholesale. But that view of the Court’s mistake raises far more serious First Amendment issues than most people understand.

Removing corporate protections would require distinguishing corporations that should be protected – political associations, broadcast, digital and print press – from those that should not be protected. That’s not easy. If corporations release “news” reports or take positions, are they press or stockholder associations? What would broadcasters’ or newspapers’ protections depend on? What would legitimate or prohibited explanations of corporate needs and positions be? First Amendment law developed around clear rules to prevent judges or legislators from deciding who can speak about what. Removing First Amendment protection from corporations cuts deeply against the First Amendment grain.

Constitutional rules, however, can be limited for compelling reasons. Citizens United revealed fundamental problems with the justifications, like corruption, for financial limits on participating in campaigns. Quid pro quo corruption is clearly illegal but regulation went well beyond it. Money can divert legislators’ attention from constituent needs toward donors’ needs, but can also expose misbehavior, or champion voters’ interests. Attorneys’ ethics prohibit us from engaging in deals or accepting gifts that create conflicts of interest – but it’s harder to define legislators’ conflicts where the donors or their allies are constituents. So the meaning of corruption has been vulnerable to attack and narrowing by the Court.

Large donations can entrench office-holders against challengers. But they can do the reverse by helping unseat legislators. The Court hasn’t been very receptive to that claim.

Political equality is a right, including rules surrounding voting, vote counting, and apportionment of districts. But just as clearly, economic equality is unacceptable here. The logical conclusion of economic equality would be a never realized vision of communism. Demanding some economic equalization in politics would force the Court to balance the extent to which economic equality can be required by political equality. That’s not a problem with a specific solution. And the Court is skeptical of allowing legislatures to define the balance because they have conflicts of interest. In any event, legislation doesn’t look promising in Congress or in most states. I’ve argued that the Supreme Court must consider equality in shaping economic rules, but that’s harder where it requires narrowing First Amendment principles. So financial equalization is hard to define and harder to argue.

Well-respected Harvard law professor, Lawrence Lessig, argues that campaign finance restrictions would prevent legislators from becoming too dependent on a few powerful donors.[2] Dependence leads legislators to shirk their duty. But legislators shouldn’t be independent of their constituents or powerful voices. So, once again, what’s the right balance? Who is and is not entitled to participate in the political debate? And how much is too much, or too little? Moving beyond Citizens United will have to be done thoughtfully.

In any event, four of members of the Citizens United majority remain on the Court. Justice Kagan is new. People who know her well tell me that she is a First Amendment absolutist, which liberals would have applauded before Citizens United, and she is not likely to overturn it. So the decision will be with us for a while.

Next time we’ll look at the proposed amendments.

— This commentary was broadcast on WAMC Northeast Report, July 12, 2016.

[1] Citizens United v. FEC, 558 U.S. 310 (2010).

[2] Lawrence Lessig, Republic Lost (2011); Ian Shapiro, Notes Toward a Conditional Theory of Rights and Obligations in Property, in Stephen E. Gottlieb, Brian H. Bix, Timothy D. Lytton and Robin L. West, Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications 914 (LexisNexis 3d ed. 2015) (“defin[ing] freedom in terms of the multiplication of dependent relationships”); Bruce Bueno de Mesquita and Alistair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics (2011); BRUCE BUENO DE MESQUITA, et al,  The Logic Of Political Survival (2003).


Casinos and the Board of Elections

November 5, 2013

When this is aired, I will be in Washington, D. C., where my students and I went to the U.S. Supreme Court to hear cases argued that we have been studying. Since it is also election day, I had to fill out an absentee ballot. On the ballot, the casino proposition leads the group of ballot propositions. Governor Cuomo had “submitted a concurrent resolution to the State Legislature to amend article I, § 9 of the State Constitution to allow for ‘casino gambling regulated by the state.’”[1]

Having been twice approved by the legislature, the proposed amendment is being submitted to New York voters. But the State Board of Elections added the following language to the proposal for the obvious purpose of encouraging voters to support it:

“for the legislated purposes of promoting job growth, increasing aid to schools, and permitting local governments to lower property taxes through revenues generated.”[2]   Read the rest of this entry »


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