On January 7th, we hosted Prof. Brian Roberts from the UT Dep’t of Government, who has a different take on money in politics than perhaps what most of us are used to hearing. He began by touching on the history of pertinent court cases and legislation that have led to our current state of campaign finance. Most of the audience found some of what they heard to be quite at odds with what they “knew” going in.
First, a few basics from the history books. Money-in-politics has been a major concern since the Pendelton Act of 1863, which attempted to reduce cronyism within the ranks of civil service. The law eliminated taxing government employees to pay for elections. Initiating Brian’s first rule of money in politics (it will ALWAYS be there), campaigners had to go elsewhere for money and that path led them to corporations. These entities were more than willing to participate in democracy, seeing a return on investment with every contribution. After a decade of this, however, political benefactors became embarrassed by all the money and personal benefits they were receiving on account of this cozy corporate-candidate relationship. President Teddy Roosevelt, who won office on corporate contributions, spoke about this in his 1907 State of the Union speech when he called for a universal tax that would replace corporate money to pay for campaigns. Congress didn’t go that far, but they did pass the Tillman Act (1907) that banned political contributions from corporate treasury money. Then there was the Taft Hartley Act (1947) that bars unions and corporations from making independent expenditures in support of or in opposition to federal candidates.
Things largely remained the same until the 1960’s, when races were won and lost because of TV or lack of it. Since the 1970’s, the courts and lawmakers have worked feverishly to steer a path between protecting free speech and avoiding corruption. It’s no secret that this path has meandered wildly over the last 40 years coming mostly from attempts to define “free speech” and “corruption.”
To be effective as agents of reform, we need to know as much as we can about what we’re reforming as well as the thinking behind those in power. We won’t be of much help if we assume a mindset in politics that doesn’t exist.
Let’s look at where the Court has been with regard to free speech, and use this opportunity to correct a common misconception. When people say that “money equals free speech” (either sarcastically or seriously) they are usually referring to the 1976 Supreme Court case Buckley v. Valeo. Actually, what the Court said was more like, “since most people get their information from media, and media costs money, then the suppression of spending is equivalent to the suppression of free speech, which is prohibited in the Constitution.” The logic there may still be flawed, but this nuance says more about the justices’ views than does the oversimplified “money equals speech” phrase we hear more often. So what does this mean to the reform community? One example: There are many low-cost or free alternatives to traditional media that didn’t exist in 1976. A properly designed court case could exploit that vulnerability today by insisting that free media breaks the link between money and speech.
On the corruption side of the continuum, the Court itself has had a great deal of trouble defining the term. In various cases, “corruption” has referred to the personal gain enjoyed by elected officials, bending the electoral process or legislative process, or unduly affecting the perception of voters. But it’s important to distinguish corruption from fairness or equality. The notion that average people’s voices are drowned out by the omnipresent media megaphones used by moneyed interests is NOT a concern of the Court. The Constitution makes no provision guaranteeing that we all have equal access to the ears of the public, so if we frame our complaints about equality or fairness, we’re probably wasting our breath — at least with this Court. However, if we focus on corruption or even the perception of corruption, we will very likely get traction, as evidenced by the 2009 case Caperton v. Massey. This case examined what happened when a West Virginia Supreme Court judge was electioneered out of office by $3M worth of campaign ads. All this money came from a coal magnate who had a vested interest in the outcome from a particular case that was ruled in his favor by the replacement judge. The loser appealed, stating that the new judge should have recused himself because of his close ties to the campaign donor. In a 5-4 decision, SCOTUS agreed, not because the new judge did anything wrong, but because these contributions gave the appearance of judicial corruption. Justice Kennedy is likely to be the swing vote in future political ethics cases, and he is likely to rule in favor of reform with issues around corruption. But not fairness.
We’ve saved Brian’s most controversial point for last. He and other social scientists have examined reams of data about campaign finance and they have concluded that corporations are scarcely even bit players in political campaigns. You heard that right, and this includes direct campaign contributions as well as “independent expenditures.” (Side note: “independent expenditures” were once limited to issue ads but because of the Citizens United ruling these ads may speak directly in favor or against candidates.) In all these arenas, Brian says, corporations just aren’t playing. He has made the point that groups like Open Secrets count individual contributions from corporate employees and officers as coming from the corporation. The legitimacy of doing this is another worthwhile discussion topic, but this may account for why Brian’s assertion seems to be at complete odds with most everything else we hear about corporate electioneering.
If you’re thinking, “now wait a minute,” you’re on the same page as just about everyone in attendance at our meeting. We have serious and numerous remaining questions that deserve exploration. We know that independent spending in campaigns went up more than four times in 2010 when compared with the next previous mid-term election in 2006. Did all this money come from individuals and not corporations? What about lobbying? Surely corporations are still spending there, and doesn’t lobbying often entail a thinly veiled threat that a more corporate-friendly candidate is just around the corner? Are we 180 degrees off on most of this or does our model of modern politics just need tweaking?
Brian also emphasized the point about how regulation of campaign spending has pushed it away from candidates and into the megaphones of interest groups who have no need or reason to reconcile their political position with the rest of public policy. He asks if we’re better off in this regulatory environment than we would be if more of our political discourse came from candidates and elected officials. Which presumably might result from less regulation, which is a pretty frightening thought for many of us.
Coffee Party Austin is hosting Craig McDonald of Texans for Public Justice on Feb. 4 to help us get closer to the bottom of some of our bewilderment.
In the meantime, we should keep talking about what we heard.
We invite your comments.
The Coffee Party Austin Board