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).


Money in Politics

May 26, 2015

For decades before the Supreme Court decided Citizens United, political scientists concluded that more money helped our democracy by increasing competition. They had also concluded that it did not disadvantage Democrats, who would hold their own in fundraising. Even after Citizens United, those conclusions still seem true. But those scholars did not address other ways that money changes politics.

I’m still angry with Ralph Nader for his part in the 2000 election. His claim that there was no difference between the parties seems way off the mark. It’s hard to imagine Al Gore would have made the same mistakes George Bush did. But Nader was onto something else. Every candidate, from Gore to Hilary and Bush to Romney, has sought support from the financial industry and other tycoons and multinationals. Some regulatory proposals looked different when first made but all were whittled down. Obama supported Elizabeth Warren for a new agency but relented to the opposition. Money matters.

That’s fiendishly difficult to measure. Most scientific work is based on comparisons. When everybody’s doing it, there are no satisfactory comparisons.

But the consequences are huge. The cost of campaigns is increasing fast, doubling since 2000. More than a fifth of the expense of Senate races, and more than a third of the cost of House races came from PACs in 2014. Outside organizations now spend more than 20% of campaign expenses, increasingly from undisclosed sources. Of the rest, less than a third of 1% of the adult population of the U.S. provides two thirds of all individual contributions to federal candidates, PACs and Parties.[i]

What do they get for that? From 2007 to 2012, according to the Sunlight Foundation, “America’s most politically active corporations spent a combined $5.8 billion on federal lobbying and campaign contributions.” The Foundation concluded that, in return, those same corporations got “$4.4 trillion in federal business and support,” more than the government paid all Social Security recipients, and two-thirds of all the money that all of us together as “individual taxpayers paid into the federal treasury.” Kevin Phillips had described the power of such political investment as many thousands to one?[ii] Sunlight Foundation calculated that “for every dollar spent on influencing politics, the nation’s most politically active corporations received $760 from the government,” a seventy-six thousand percent return.[iii] Contributions coupled with lobbying work exceedingly well at those levels.

Bruce Bueno de Mesquita and his colleagues elaborated the impact of what they call the “selectorate,” the people who dominate the choice of political leadership.[iv] As the selectorate shrinks, politicians direct ever increasing public benefits toward that shrinking group and fund them on the backs of everyone else, paving a path to the collapse of democratic government. Here, that one tenth of one percent of Americans, who bring home the great majority of America’s wealth, dominate our politics as they do our wallets.

Political scientists urge public funding as the best available solution. Just take money out of the equation. The public doesn’t like funding politicians they may not agree with, and we don’t much like paying their salaries either. But to get a politics which takes account of the welfare of the entire American population, it appears to be the most likely path. And a very good investment.

Next week, the risks.

— This commentary was broadcast on WAMC Northeast Report, May 26, 2015.

[i] The Center for Responsive Politics keeps track of the data at OpenSecrets.org. See https://www.opensecrets.org/overview/index.php, https://www.opensecrets.org/overview/cost.php and https://www.opensecrets.org/overview/donordemographics.php [visited May 12, 2015] for the information presented.

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

[iii] https://sunlightfoundation.com/blog/2014/11/17/fixed-fortunes-biggest-corporate-political-interests-spend-billions-get-trillions/.

[iv] Bruce Bueno de Mesquita and Alastair Smith, The Dictator’s Handbook: Why Bad Behavior Is Almost Always Good Politics (New York: Public Affairs, 2011); Bruce Bueno de Mesquita, Alastair Smith, Randolph M. Siverson and James D. Morrow, The Logic of Political Survival (Cambridge, MA: MIT Press, 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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