Another in an occasional series on free speech: One person, one vote. One person, one amount.
Following up previous posts, again on the recent legal argument that money, in the context of political donations, is speech; that huge political donations are a form of political participation like other ways of participating; and that corporations are persons and can contribute just like any other persons–
As previously written, one problem is that in the context of elections, money is being treated as ‘speech’ in the courts, selectively, but speech is not being treated as money. Even celebrity endorsements, appearances by movie stars and sports figures—like Chuck Norris’s appearances for Mike Huckabee in 2008–are not treated as contributions in the sense that money is a contribution, even in the sense that an entertainment for a fundraiser event might be a contribution.
Another problem is the selectiveness with which money in politics is treated as speech or political participation. Since Buckley v. Valeo,* effectively only individual contributions of some kinds are limited by law. Money the candidate receives from someone else is a contribution, and limited; money received from self is an expenditure, and not limited.
Note: That’s in spite of the fact that contributions treated as protected expression or participation still have to be reported as if they were money.
These un-bookkeeping partitions between some kinds of receipts and others were, of course, extended by Citizens United v. Federal Election Commission, which removed limits on political funding of ‘independent’ broadcasts by corporations. Money given by an individual is limited; money given by a corporation is not limited in this context. (It might be added that few individuals could afford to fund a movie anyway; see below.)
Note: That’s in spite of the fact that a corporation can be considered a ‘person’ under the law.
Short background here, condensing for brevity—
The Supreme Court ruling in Citizens United struck down a McCain-Feingold Act provision that prohibited unions and corporations from broadcasting “electioneering communications,” i.e. a broadcast that mentions a candidate within 60 days of an election or within 30 days of a primary. The rightwing Citizens United group used this well-meant but inartful provision to attack Michael Moore. The attack on Moore failed, but the group ultimately succeeded in sweeping away some protections of the individual against corporations in our elections.
To a non-lawyer, that unique provision looks in hindsight somewhat like the regrettable incident at Brown University when a student got expelled for drunk-and-disorderly, and the right seized on the expulsion as an instance of ‘thought police’ and infringement on someone’s protected expression. The student newspaper among other sources reported what the student yelled—slurs and hate language. That content became the focus of wider reporting, and thus shifted the emphasis from the student’s conduct to the university’s purported policies. Similarly, in McCain-Feingold, we needed legal limits on money in campaigns, straight out. Instead we got limits on films. They were asking for trouble when the provision, however well-meant, got passed. The student’s misconduct got mistranslated into ‘free speech’; undue influence in our elections got mistranslated into freedom of expression and ‘political participation.’ The last refuge of the scoundrel.
In argument about campaign finance reform, the fundamentals recapped even in Buckley, which weakened reforms, are seldom quoted:
“(a) The contribution provisions, along with those covering disclosure, are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion.” [emphasis added]
The entire history of judicial decisions in the United States upholds the valid proposition that there is such a thing as improper influence, and that it threatens the integrity of the electoral process.
This core point is too often overlooked—intentionally, by the well-paid op-ed neo-cons who brought about, for example, the invasion of Iraq and ‘deregulation’ of public utilities.
Unlike some other writers, I think that both public financing of campaigns and genuine limits on money in campaigns can be enforced. Money leaves a trail.
To be genuine, the limits have to be direct and unequivocal:
- Limit the individual donation, total, to a flat sum per person;
- The limit applies, regardless of what purposes the money is specified or not specified for, in a campaign;
- All donations have to be made by the individual as a person, regardless of whether the individual is also a candidate or a member of a group;
- Any and all donations by a corporation acting as a ‘person’ have to be made the same way as donations by any other individual, with the same limits.
All legal donations, in short, are individual donations. And all individual donations are a constant: One person, one amount.
Movies or no movies, corporations or no corporations, the ultimate sticking point here is probably the suggested limit on individual donations. Under current election law, an individual is limited to $2,500 per election, per candidate. So a young person facing the current job market, hard-pressed to come up with $25 for a candidate he really likes, is out there ‘participating’ with the Scaife and Koch types, who could donate the $2,500 maximum to every federal candidate running in every state, in a calendar year, or who could just for fun restrict their donations to Republicans running in Texas and Florida, or to white male candidates, or to on-the-record birthers, etc.
You’d think this alone would be enough inequity to content the hard right. A poor person can vote in more elections than s/he could possibly afford to donate to; a wealthy person can donate in more elections than s/he could legally vote in. Thus, already, even setting aside all the highly relaxed limits on other kinds of campaign donations, the electoral system is tilted inexorably in favor of individual donors who can afford to give to every likely candidate for U.S. Senate and House, as did members of the Koch family in 2009-2010–and to hedge their bets, the way Goldman Sachs always used to do, by donating large sums to both major parties. A funny kind of ‘expression,’ when you think about it, not much resembling sincere and heartfelt belief . . .
Again, wealthy individuals have the massive political advantage of being able to donate thousands of times more, if they wish, than do ordinary individuals. Why isn’t that enough social inequity, even for someone politically to the right of Louis XVI?
This brings us back to that freedom-of-expression argument. Certainly, as you point out, Mr. Scalia, an individual can vote in more than one election. But there is such a thing as voting improperly, as when an individual tries to vote more than once in the same election. Allowing selected individuals to vote more than once in the same election would violate equal protection.
If political donations are a form of political expression and thus protected, then limiting them unequally is protecting them unequally. Allowing and indeed enhancing the possibility of skewed donations and influence, through expression, must be a violation of equal protection.
To be continued
* Re-post: the Supreme Court ruling that political money is in some ways speech came in Buckley v. Valeo (1976). Post-Watergate provisions of federal election law restricting campaign expenditures were challenged in court, on grounds that limits on campaign expenditures violated First Amendment clauses on freedom of speech and of association. In Buckley, the Court ruled that “The contribution provisions, along with those covering disclosure, are appropriate legislative weapons . . .”
“The First Amendment requires the invalidation of the Act’s independent expenditure ceiling, its limitation on a candidate’s expenditures from his own personal funds, and its ceilings on over-all campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.”