• Brief Commentary on the Supreme Court Campaign Finance Decision

    My mother, Phyllis Frakt, sent me the following commentary on the Supreme Court’s campaign finance decision. It’s such brief commentary it feels more like a Twitter op-ed than a blog post.

    “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” ~ French novelist Anatole France (1844 – 1924), The Red Lily, 1894, chapter 7

    Now we also have the reverse: the law, in its majestic equality, allows the poor as well as the rich to bankroll candidates, to buy elections, and to overwhelm legislative agendas.

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    • In the midst of writing up a sprawling link-fest on the subject, I came across this article by Glenn Greenwald:

      What the Supreme Court got right

      He touches on many points, but comes back to the notion that McCain-Feingold didn’t really stop “the rich” from influencing the course of government (through lobbying, media corporations, and a host of loopholes), but merely served to prevent smaller groups (like Planned Parenthood, the ACLU, or the eponymous Citizens United) from competing with the big-money players.

      It also occurs to me that in 1894, the cost of broad publication was extraordinarily high; in 2010, things like YouTube and WordPress make it easier for “the little guy” to be heard. I’m not claiming that money is irrelevant, but it’s less overwhelmingly dominant than it used to be — which means that the smaller groups worst served by McCain-Feingold are more viable.

      • @bluntobject – Thanks for the link. I skimmed the article, though I’m sure I missed a point or two. I couple of things jumped out at me (or one jumped out and another came to me from my own mind).

        1. “Either the First Amendment allows these speech restrictions or it doesn’t. In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).” Of course this makes sense logically. But there have got to be large swaths of laws about which it is not at all clear what the Constitution says. I’m very far from a legal scholar, but it must be the case that there are modes of argument that are generally viewed as legitimate in such cases. Nevertheless, can’t one back into a preferred opinion starting from an opinion of the outcomes? Of course. And it strikes me as almost impossible for the human mind to avoid doing this. Of course a SC justice wouldn’t admit it. But the subtlety of psychological bias is at work in them as it is in us. I think outcomes matter even if we pretend they don’t. I wonder if we might do better just to admit that they do.

        2. Whether under McCain-Feingold or the current regime we do have the result that more wealth leads to greater influence (or, bluntly, more speech). Isn’t that really the issue here? I’d rather see a debate on that very point. Is that notion Constitutional or not? Does it lead to outcomes we like or not? Maybe this is a main theme in the opinions. I haven’t read them. Whether it is or not I’d love to see someone go into it. If this issue is not considered it misses the point in my view.

    • I think outcomes matter even if we pretend they don’t. I wonder if we might do better just to admit that they do.

      I think we would. Rather than pretend that outcomes don’t matter, we’d benefit from bringing them into the debate — and distinguishing between short- and long-term outcomes as well.

      Whether under McCain-Feingold or the current regime we do have the result that more wealth leads to greater influence (or, bluntly, more speech). Isn’t that really the issue here? I’d rather see a debate on that very point.

      Not quite the same thing, but something similar came up at the New York Times over the weekend:

      Does corporate money lead to political corruption?

      “There is no evidence that stricter campaign finance rules reduce corruption or raise positive assessments of government,” said Kenneth Mayer, a professor of political science at the University of Wisconsin-Madison. “It seems like such an obvious relationship but it has proven impossible to prove.”

      The article cites examples of heavy regulation (Britain, Wisconsin) and light-to-nonexistent regulation (Australia, Virginia), and argues that regulating political speech doesn’t really change outcomes in general. This supports Greenwald’s argument that the big-money players can always find a way to influence politics, whether through campaign ads, or lobbying, or something else.

      I’d also like to see a study on the degree to which money buys influence. Do regulations like McCain-Feingold make it easier for the little guy to be heard because (most) big-money groups are forbidden from direct electioneering, or do they make it harder for the little guy by eliminating a relatively cheaper option and shifting the game to lobbying? My wild guess (I won’t dignify it with the term “hypothesis”) is that, as publication and distribution gets cheaper, big money buys proportionately less influence in public speech than it does in other political domains. Maybe we need a McCain-Feingold equivalent for lobbyists instead — although I’d cheerfully settle for full and prompt disclosure backed up by RICO statutes.

      • @bluntobject – Here is where I’ll bow out. I just haven’t thought or read deeply enough to contribute more. I can raise questions, as I have, but don’t have the time to develop the issues and answers. Good thing I’m relatively young. I hope I live long enough to feel comfortable in just about every policy debate!

        But this is exactly why I’m reading your blog (or one reason I might be). I need an easy hand-holding entry into this and many other areas of policy, politics, and law. Have you provided or will you provide it?

        (I’d also be ecstatic to have more guest posts and co-bloggers here that go deep into various areas. That’s a long-term goal.)

    • Well, I have a pretty long post up on the Citizens United ruling, most of which regurgitates Glenn Greenwald’s position (but I did try to add some value along the way). I can’t claim to offer any sort of a summary on the subject, but I do have a bunch of links on the “this is a good ruling” side of the discussion. For something closer to the “anti” side, Kevin Drum’s post comes highly recommended. I’m working through that now.

      • @bluntobject – You caught me in not having read all your posts. Mea culpa! 🙂 That is a nice long post, with many links. Looks like I have some homework to do.

        I was sort of hinting at some tutorial content though. As in: here are the main issues in this area and how an expert thinks about them. If you do such things (or have), please bring them to my attention. (I’ve done many in health economics. But a new-ish reader would really have to dig to find them. So, if anyone reading this needs/wants something, just ask. I’ll either direct you to the old post or put it in the queue for later.)

    • I was sort of hinting at some tutorial content though. As in: here are the main issues in this area and how an expert thinks about them. If you do such things (or have), please bring them to my attention.

      I’m not expert in policy, politics, or law, though: I’m a PhD student in computing science, and I’m just muddling my way through these topics as they come up. Before Friday, my understanding of campaign finance legislation and corporate rights amounted to very little: I’d watched a bit of the documentary The Corporation with some friends and disagreed with some of what I saw. Writing a tutorial might be a good way to teach myself more about the subject, but I wouldn’t want to present myself as an expert.

      • @bluntobject – Good point. I try not to stray far from my area of expertise either. I do think it is possible to be expert in areas in which one has no formal training, but it is rare. It does seem like you’re off to a good start though! I appreciate your work and comments.