Free Speech Or Bribery? – An Analysis (15 April 2014) by Lawrence Davidson
Part I – Legalizing Bribery
On Wednesday 2 April 2014 the U.S. Supreme Court took another step toward the destruction of campaign finance reform with a five to four decision known as McCutcheon v. Federal Elections Commission. One gets the feeling that this is part of a general campaign, waged by class-biased, ideologically committed conservatives, against government regulation, which they see as somehow a violation of their constitutional rights. As if to suggest that this is so, the Court majority rationalized their decision in the name of “free speech.”
What does this ruling do?
First, the ruling removes limitations on overall campaign donations given in an an election cycle. The wealthy can now sit down and write checks to unlimited numbers of candidates and political organizations and thereby make themselves indispensable in an electoral process dependent on the raising of large sums, particularly for television advertising. Indeed, in this way the influence and demands of wealthy donors continue to be more powerful and persuasive than the solicitations of ordinary constituents whose interests the elected official is pledged to serve. In other words, McCutcheon vs. FEC pushed forward the process of legalizing bribery within our political system – a phenomenon which already is well along in its development.
Second, the ruling corrupts the notion of free speech by equating it with the use of money. Thus, the Court majority confuses free speech with that very act of bribery noted above. They seem to be pretending that we are dealing with the transparent efforts of constituents seeking to convince their political representatives of a certain point of view. This is an illusion. We are dealing with donor individuals and organizations funneling millions of dollars to politicians in need of small fortunes just to maintain their professional positions, and to do so in exchange for political and legislative favors. That is the exercise of free speech only if you equate it with the suborning of elected officials. It is hard to believe that the five Supreme Court Justices who voted in the majority do not know this. And if they do, they are guilty of using the Constitution to rationalize criminal behavior.
Part II – The Specific Arguments and Their Flaws
Argument One – “Contributing money to a candidate is an exercise of an individual’s right to participate in the electoral process through both political expression and political association.”
In taking this line of argument the justices ignore an established principle that operates in the social (as well as physical) realm: that is that quantity can shape quality and in so doing “act as a causal mechanism in social behavior.” For instance, you can say that contributing of money to campaigns and parties is an inherent part of the right to political participation. However the quality of that right, that is, its consequence, is dependent on the quantity of the donation and its source.
Thus, this form of political participation has different consequences if a multitude of citizens give small amounts to various candidates and parties than if a few citizens, cleverly bundling their donations, give millions. The former is unlikely to skew an election through overwhelming, and often distorting, media advertising or to compromise the integrity of the candidate once elected. The latter is almost certain to do these things. In other words, so much money coming from a few sources into an electoral process dominated by the need for money transforms donations into bribes and payoffs. This transformation is exactly what effective campaign finance reform is designed to prevent.
Argument Two – Restricting contributions is like restricting the number of endorsements a newspaper can make. “Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”
The problem with this assertion is that newspapers do not usually trade in favors. Big donors almost always do. Newspapers usually do not expect those they endorse to change the regulatory environment in which the newspaper operates. Big donors almost always do. By making the comparison between newspaper endorsements and the actions of large donors, the Justices are making a false analogy. They are mixing apples and oranges.
Argument three – “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties.”
This statement contains one dubious assumption and one misstatement of fact. First, assuming that “spending large sums of money in connection with elections” is not done in an “effort to control the exercise of an officeholder’s official duties” and therefore does not result in “quid pro quo corruption” is, at best, dangerously naive.
Do these Justices really believe that the Koch brothers, Sheldon Adelson and a host of corporations and special interest organizations would spend millions of dollars in an election cycle apart from “an effort to control the exercise of an officeholder’s official duties”?
The claim that “an individual who spends large sums” does not “garner ‘influence over or access to’ elected officials or political parties” is just wrong. What do these Justices think the American Rifle Association or the American Israel Public Affairs Committee are doing if not buying influence and access?
It is odd that these Justices, who undoubtedly recognize that they live in a capitalist country where just about everything is up for sale, would so blatantly pretend that politicians and elections are not also available for purchase.
Part III – A Formula for Disaster
Senator John McCain, one of the sponsors of the bipartisan Campaign Reform Act of 2002, predicts that the recent Supreme Court decision will result in “major scandals in campaign finance contributions” and these in turn “will cause reform.”
Scandals there are sure to be. However, I am not sure about reform. Past “major scandals” have not necessarily led to reform. In the United States numerous school shootings have shocked the public but not resulted in the reform of the nation’s gun laws. Recent financial crises have led to recession and government bailouts for savings and loans, banks and mortgage houses, but have not resulted in sufficient regulatory reform to prevent a recurrence of these problems. Therefore, campaign finance scandals may not yield the reform Senator McCain foresees. All these scandals do indicate one thing, though, and that is that the Supreme Court justices don’t know what they are talking about when they assert that big money contributions are not corrupting.
Let us keep in mind that the U.S. citizenry is largely estranged from politics and ignorant of the workings of their national economy. Such
indifference and ignorance allows power to default to the minority who are unethical enough and wealthy enough to not only buy politicians, but to buy public opinion through the manipulation of the media – a particular specialty of people like Rupert Murdoch.
This concentration of power usually results in periods of wholesale deregulation of business and politics leading inevitably to political unrest and economic ruin of one degree or another. Yet it is only when these consequences become so disastrous (I am talking here on the scale of the 1929 depression or the race riots of the 1960s) that the public’s backlash brings about significant reform. And even then the nature of such events is cyclical. We have forgotten the corruption of the Gilded Age and the hardship of the Great Depression. Some of us have even forgotten the racist nature of our politics prior to the Civil Rights Movement. So you should let your children know they may see these troubles again in the near future. Maybe they will be able to handle them better than we are.