What Can't Be Said

In what will possibly be a landmark decision in the history of American democracy, reality is strictly off limits.

More Pols Taking Cash

Back in early October of 2013, activists rose together briefly to decry an expected court reversal of campaign finance limits.  Yes, you read that correctly.  The Supreme Court took on a new case that argues in favor of more money in our election process.  3 ½ years after the Citizens United decision; after the emergence of Super-PACs; after a money-fueled roller-coaster ride through the Republican primaries, after Sheldon Adelson’s help and hindrance to Mitt Romney, after a $2B+ presidential race; and even after the longest, most sustained, and most well-organized effort ever mounted AGAINST the corrupting influence of money in politics; we were watching the Supreme Court now questioning long established donor limits – limits that Citizens United had not touched.  We were going backwards.

Contribution (donor) limits were found constitutional in Buckley v Valeo in 1976.  The reasoning in Buckley was that giving money to a candidate looks a lot like a bribe.  So far so simple.  Even if the donor has no such designs, the appearance of corruption is treated as corrupting of trust.  So, to avoid actual and apparent bribes, the amount that a donor may give to politicians may be limited by law.  The reasoning is clear.  With limits on each donor, no donor can stand out as deserving of political favors.  Importantly, campaign donations were not held to be expressions of free speech.  To campaign for office, the candidate expresses his or her own opinions.  There is no assumption that the donor’s views will be expressed at all.  So while a candidate can give to her own campaign and spend without limit, the donor has rules.  The current limits for each donor are $2600 per candidate per election cycle and $123,000 dollars total per election cycle.

Alabama businessman, Shaun McCutcheon (along with the Republican National Committee), thinks that limiting the total amount he can give in any election cycle is unconstitutional.  His reasoning is that if he can give $2600 to any one politician, and that is not considered corrupt, then he should be able to give that amount to as many politicians as he likes and not be considered corrupt.  McCutcheon has said that he is not arguing with the dollar limit per candidate, only with the number of candidates (or total dollars).  But in his written arguments, he questions the relevance of contribution limits in a campaign finance landscape so altered (broken) by Citizens United.  When donors can give unlimited money to a PAC that campaigns for a candidate openly, and the total dollars reach stratospheric heights, is McCutcheon a victim of government censorship for following the direct candidate contribution rules?

The simple answer is “No,” but before exploring this twisty bit of nonsense, let’s back up and look at the reality of American politics under Buckley v Valeo, Citizens United and SpeechNOW.  Currently, the average Senator wakes up every morning needing to find another $20,000+.  By various estimates a congress person spends from 30 to 70% of her time beating the bushes for money.  Money is essential for continued political survival.  Congress people depend on money and that money comes from a tiny sliver of citizens.  According to Lawrence Lessig a mere 0.26% (roughly one quarter of one percent) of Americans give $200 or more to any candidate.  A smaller five one-hundredths of a percent give the maximum allowed to any candidate.  And only one one-hundredth of a percent give more than $10,000 total.  A mere 132 people provided 60% of all the (Citizens-United-SpeechNOW-enabled) PAC funding in the last election.  None of this reality was discussed on McCutcheon’s day in court.

Instead the court listened to assertions on both sides, and then repeatedly asked how this or that specific funding transaction might alter an election outcome or buy a favor.  Lyle Denniston on SCOTUS Blog asked, “If the Supreme Court really does not understand how money moves around in American politics, how can it fashion constitutional rules to prevent abuses?”  A good question.  But even more importantly, if the Supreme Court does not understand the basic concept of systemic corruption, the idea that the democracy is not representative of its people, then almost all of the detailed legalese is useless.  According to Jeffrey Toobin in New Yorker magazine, Justice Kennedy, who wrote the majority opinion in Citizens United, reduced the discussion of all corruption to the purchase of political favors – a giving of this for that (quid pro quo).  Systemic corruption cannot be mentioned.

McCutcheon’s arguments fail on several accounts.  Firstly consider his cynical question about the post Citizen United America of SuperPACs.  The legal argument used for allowing independent entities, not coordinating with a candidate directly, to solicit and spend unlimited amounts of money is that they are speaking freely as protected in the First Amendment.  Conversely, giving money directly to a politician has been held to not be free speech and it can look like a bribe.  But why limit the number of candidates – McCutcheon’s original question?  Because it takes more than one congress person to pass a bill.  And because one donor can stand out among all donors in precisely this way.  This is mind-numbingly simple.  Mr. McCutcheon wants to buy himself a congress or a party or a caucus or a committee.  Every day that his protégés meet to discuss the course of the democracy, they are nagged by their financial dependence on their patron.  There will be at least one and probably many situations where they will consider the impact of their actions on their patron ahead of the public at large and perhaps even ahead of their own specific constituency.

We the People are not obliged to prove that this system of wrong dependencies serves only quid pro quo corruption, but frankly, there’s absolutely no reason to think it doesn’t.  One gives the money.  Another gives the outcome.  The only question is really ‘how much corruption’ results.  And the answer, unfortunately, is ‘plenty,’ because it ALL looks like corruption.  Remember that the appearance of corruption has already been determined to be corruptive.  In study after study, the American people have voiced that they see the system as corrupted.  They disagree with Citizens United and expanded corporate personhood.  They distrust moneyed-interests.  They think there’s too much money in politics.  More than 2/3 of nearly every identifiable group in politics has some if not major issues with how things work, from self-identified Republicans, Democrats, Tea Party advocates, members of MoveOn, union workers to small business owners there is a basic mistrust of financially dependent politicians.  Our system is corrupted.

Just don’t try to tell that to the Supreme Court.

And that is the most painful aspect of this case.  Almost everyone who has considered this case, seeing that the obvious real corruption cannot be mentioned in arguments, presumes that the overall contribution limits are about to fall.  The system will tilt further off its axis.  The activists who complained on the steps of the Supreme Court building back in October – they meekly wait.  A decision is imminent, but there is no media campaign to shine a light on the issue.  The McCutcheon case needs public discourse that the SCOTUS might actually recognize.  But sadly it seems that if the people want to be heard, they’ll need to first find some very wealthy patrons.

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