SUPREME COURT SHENANIGANS EXPLAINED BY JAMIN RASKIN

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Yes, I'm plogging along and this time I've stumbled upon a clever attorney called Jamin Raskin who is now my hero.  This man is a champion for minorities, a champion of the people and I’m pretty sure if you met him at a bar one night he’d be an overall great guy.  He was a former Massachusetts’ Assistant Attorney General and editor of The Harvard Law Review, so don’t bet against him in a pub quiz on constitutional law.  

In the United States the Supreme Court is the final interpreter of the Constitution, which means if it finds that a law passed by Congress is in breach of the Constitution, the Supreme Court has the power to throw it out.  Until Justice Scalia died earlier this year the Supreme Court enjoyed a conservative majority for 45 years.  In the 15 years before this book was published (2004) it threw out a higher than normal amount of the legislation passed by Congress which included good stuff like the Gun-Free School Zones Act; the Violence Against Women Act and the Low-Level Radioactive Waste Policy Act.  It did so while often citing justifications that ranged from shaky to “ok so I just made this up.”

Raskin’s prose boils down some critical ways in which our political system is broken and how to fix it, so that’s got to be worth a read.  As usual I took the “long and boring” out of the book by picking out what I considered the most salient.  All items in italics in this article correspond to a particular lawsuit.  The United States has a “common law” system, which it inherited from Britain.  In a common law system attorneys are allowed to cite any previous ruling (called a precedent) as a basis to the actions of any of their lawsuits.  For this reason anything a judge rules essentially changes the law from that point onward.

Are you excited?  Here goes!

Overruling Democracy by Jamin Raskin

The Political Supreme Court

Raskin starts out by blitzing the intellectual integrity of the Supreme Court, which he claims has "failed to live up to neutrality obligations” and has "seen aggressive judicial activism based on the political [biased] preferences of the justices [a.k.a. judges.]"  These justices have struck down several laws passed by Congress especially those "expanding rights or advancing social and environmental agendas."  In the first two hundred years since the Constitution was first instituted the Supreme Court struck down 127 federal laws.  In the fifteen year period between 1987, (when William Rehnquist took over as chief justice) and 2002 it struck down 33!

Professor William P. Marshall of the University of North Carolina School of Law shows “the conservative justices [of the Supreme Court in the years preceding this book’s publication] have failed to defer to the decisions of elected branches, repeatedly betrayed a doctrine of strict textualism or the [Constitution] framer’s “original intent,” have not even pretended to defer to case precedent, refused to conform to jurisdictional limitations and the court’s power, spontaneously invented new constitutional rights and theories.. and used judicial power to accomplish partisan [biased/political] objectives.” 

In the prose that follows you will learn about the cases in which Raskin claims the Supreme Court has damaged democracy.  In different instances it has propped up the two-party system; granted free speech to corporations; declared that education is not a constitutional right; legalized arrangements that select white leaders and in 2000 it became the first United States court to decide a presidential election.

“Wow!  Really?” – I hear you gasp.  Read on to decide for yourselves my lovelies.

The Supreme Court gives the 2000 election to George W. Bush.

When the Supreme Court gave the election to George Bush in 2000 (which is something the court has never done before) by overruling and thus halting a manual recount ordered by the Florida Supreme Court, the reason given by the court was there was no time to decide upon a standard recount procedure.  Since the poorest voters have the worst voting machines and the highest rate of damaged voting cards, ordering a manual recount would certainly have helped Bush’s opponent and the conservative majority of the Supreme Court knew it.

Notably, in their opinion the judges stated, "individuals have no federal constitutional right to vote."  This statement leaves the system open to manipulation.  Old tricks to prevent votes from being recorded correctly surfaced in a later lawsuit that went into what went wrong in Florida.  Poll workers were found to have been illegally insisting that African Americans produce two forms of ID; polling places were mysteriously changed and incompetent poll attendants were hired.  In its opinion the Supreme Court also stated "the state legislature may select the electors itself."  This means the state can decide which president to vote for without the public’s participation.  Based on the Constitution, which was a document created when most people could not vote, this is true.  But that is a technicality in today’s world.  Every citizen of the United States expects to be able to vote (unless disqualified - like a felon) and the United States presents itself as a democracy to the whole world. Universal suffrage, which means one person one vote, is a fundamental feature of democracy.  In other words in their ruling in 2000 the judges of the Supreme Court shamelessly stated that the United States is not a democracy.  Without writing one person one vote into the Constitution millions are disenfranchised (or excluded from the right to vote) every election.  A study by CIT and MIT determined 6 of the 100 million votes went uncounted in the presidential election of 2000!

The vast majority of states have rejected the act of disenfranchising ex-felons for life.  In Florida when Bush won the presidency by under 500 votes, 200,000 ex-felons were not allowed to vote!  Political estrangement for those who have served their time does not permit full rehabilitation.  Our author suggests we enfranchise ex-felons in every state.

125 nations around the world now guarantee all citizens the right to vote following America’s (ersatz) example of democracy whilst the United States does not.  There are only 15 countries left in the world that, like the US, have refused to commit to universal suffrage.  This is an affront to international law and the universal declaration of human rights of 1948 which states “everyone has the right to take part in the government of his country.”

Solution: Raskin proposes an amendment to the Constitution, which grants all citizens the right to vote unless disqualified and the right to run for office on an equal basis.  This would force the government to update old voting machines that make mistakes.

The Electoral College system should be abolished

Bush vs Gore was a "trademark judicial intervention against popular democracy: deeply partisan, racially inflected and.. unmoored from.. legal doctrine.” Al Gore beat Bush by 500,000 votes and lost by 6 electoral votes.  From Wikipedia: “The United States Electoral College is the institution that elects the President and the Vice President every four years.  Citizens of the United States do not directly elect the President or the Vice President, instead they elect representatives called "electors,” who usually pledge to vote for particular Presidential and Vice Presidential candidates [but are not obliged to vote for the people's choice of President or VP.]”  Raskin recommends abolishing the Electoral College because he argues it defies the sovereignty (or power) of the individual.  It is futile to have one person per vote if each person's vote does not count equally. The Electoral College system is part of the Constitution and part of the problem is that the Constitution was not written in a perfectly democratic way.  48 states do a winner-take-all election where a candidate that has a majority of the votes in a state can win all of the electors in the state and the voices of all the people that did not vote for the winner are dismissed.  This reduces a citizen’s incentive to vote.  Because Florida’s election is usually competitive, they saw voting turnout of 70% whilst the national average was 47% in 2000 putting the US behind every major democracy on earth!  You might be also be surprised to hear that the government provides no official count for the vote for the President.  The people are dependent on precinct returns, exit interviews and polling!

Solution: The author recommends direct national majority rule, which would mean every person's vote has equal value.  We also need a national ballot based on a national election with a national system for reporting the tally.  The ballot is the piece of paper with names on it that you complete and submit on election day.  Right now ballots have a different selection of presidential candidates on them depending on your location around the country.

The drawing of voting districts to meet the political desires of elected leaders (a.k.a. gerrymandering) and how this has been used to advance white rule

"After the 2000 census and redistricting process, fewer than 50 out of 435 house seats are truly competitive."  The economist called redistricting a "glorified incumbent-protection racket."  An incumbent is the elected leader who in currently in office.  Redistricting is the process of drawing electoral district boundaries.  For part of our history members of the house were elected on a statewide basis.  "Single-member districts were not made a federal requirement until the 1960s."

The fact that 98% of African Americans were we're off the voter rolls in Mississippi which was two thirds black was part of the injustice that led to the voting rights act of 1965 which abolished suffrage like the literacy test, the character exam and a constitutional law quiz.  In 1982 amendments to that same act meant that redrawing districts to systematically dilute the back vote was illegal.  As a result by 1990 African members of Congress grew from 26 to 39 and Latino members of Congress grew from 13 to 18.

The backlash to this from conservatives was a 1993 suit in North Carolina resulting in a racist ruling stating, "any districts with nonwhite majorities must not have a bizarre perimeter."  The author goes on to illustrate the perimeter of nonwhite majority districts, which were disallowed based on this rule and compares them to white majority districts, which were allowed, to demonstrate both types had an equivalent amount of "bizarreness.”  In the past the court “found it permissible to redistrict with the intent of protecting “incumbents from contests with each other.””  It is a far greater affront to democratic principles to build a congressional district to protect a politician’s career than it is to shape a district to enable a long excluded racial group to have elected representation.

"The solution is to [end] single-member districts and move to the at-large proportional-representation electoral systems used by democracies around the world."  This means if a group has a certain percentage of the total vote within a state they would have a proportional amount of representatives in Congress.


The two-party system, the damage it does to democracy and the “signature gathering obsession.”

“The court upholds laws that discriminate against third parties by keeping their candidates off the ballot, out of debates and off the public’s radar screen."  "The two major parties will join together to design laws to guard their overwhelming market share."  These laws range from ballot access laws, anti fusion laws, debate-access laws and presidential campaign public financing laws.  "This self installing "two party system" is unlawful."  The idea conflicts with the text and ideas behind the Constitution and its "wide-open" values.  The two-party system is neither derived from our history nor is it a constitutional imperative.

The introduction of government prepared ballots happened in the late 1800s.  Many states placed any party that wished to participate on the ballot without condition whilst some required 500 to 1000 voter signatures say 30 days before Election Day.  In Maryland between 1903 and 1938 there were never fewer than 3 parties for statewide offices.  In 1940 in an effort to remove left wing parties like the socialist, labor and communist parties the states began to severely restrict the ability of parties to get on the ballot by asking parties to achieve a certain number of votes in the prior election or to collect often tens of thousands of signatures of registered or previous election voters.  In Maryland these requirements have meant that no party outside the "two-party system" has ever succeeded in meeting the signature requirements for getting on the ballot for statewide office in the six decades since that change was made!

Article 1 of the Constitution spells out three requirements for running for office: that House Members be at least 25 years old and Senators 30, that they be residents of the United States for seven or nine years respectively and that they be inhabitants in the states they represent.  Beyond that the First Amendment granting political free speech means that government must not interfere in elections.  Signature requirements are thus unconstitutional.  Furthermore Raskin states “[The Fourteenth Amendment granting] equal protection bans [government] discrimination against minority groups.”

Signature requirements are "suffocating restrictions" which create a two-party monopoly.  Court rulings on the issue have be nothing but a “cynical power grab.”  The ruling used most commonly has been Jenness v. Fortson, which has been used by 126 lower court cases as a precedent in which third party or independent candidates have lost claims to being placed on the ballot.  The Jenness court claimed Georgia has "an important state interest in requiring ..a modicum of support before (putting) a candidate on the ballot - the interest.. [is] in avoiding confusion, deception and .. frustration..." The court made this claim when Georgia only had one candidate for Governor and for most of the US house and state legislative races between 1944 and 1962!  Therefore as a citizen in Georgia, facing a single person to choose from in an election can only be “confusing” and “frustrating” in as far as there are too FEW names to choose from!  The fact that since 1944 there was sparce competition was the direct result of the restrictive changes of 1943 regarding the collection of signatures and other unconstitutional impedances.  Before 1944 there were never more that 6 candidates on a state-wide ballot and no confusion was ever had or alleged.  In the meantime these states often see primary elections today with upward of eight candidates in the Democratic or Republican primary, which does not seem to this court to be confusing or frustrating.  The hypocrisy is rather transparent.

The author suggests that instead of the "perfectly useless task of collecting signatures” more constructive means of measurement could be implemented like asking candidates to document how much time they have spent campaigning; asking candidates to mobilize personal and volunteer hours for community service or getting them to register 500 people to vote.  Great Britain has never required more than 10 signatures for Members of Commons.

Solution: The "signature gathering obsession" should be addressed by federal courts in order to assess whether this "colossal.. waste of time" and harassment should be allowed.
 
In 1997 Chief Justice Rehnquist of the Supreme Court shamelessly stated "the Constitution permits the Minnesota legislature to decide that political stability is best served through a healthy two-party system."  Most of the states are involved in enabling the two-party system to keep a firm grip on the political system.  This is precisely when the Supreme Court is needed to uphold the Constitution and a democratic system but instead it has formed "part of the assault on democracy."  The two-party system has been making election devoid of the substantive debate necessary for political consciousness and change.

The Commission on Presidential Debates

Our presidential debates are staged by the Commission on Presidential Debates (CPD,) which is a private corporation set up in 1987 by lobbyists Frank Fahrenkopf Jr. and Paul Kirk Jr. on an explicitly "bipartisan" (two-party) basis.  Fahrenkopf and Kirk are former Republican and Democratic party chairmen and were, as of the publication of this book, activists in their party networks.  The CPD collects millions from "mega-businesses" like Sprint and Dow Chemical.  The author jokes that bipartisan means corporations can "buy" one party and get the other for free.  These are not real debates since the two sides agree on a host of issues, which would otherwise need to be debated.  In comparison to debates in almost every other democratic nation our author calls these debates "the most constricted and vacuous political discourses on earth."

A discourse between a journalist and Clinton’s campaign manager during the 1996 election made no secret of the fact.  In the transcript the campaign manager said that keeping third-party candidate Perot out of the debate was a “deal” made between the two major party candidates and Clinton’s manager admits that Clinton’s team were not honest in communications with the media about the fact that they wanted Perot excluded from the debate.  When asked why by the journalist the manager said, “because we wanted Perot’s people to vote for us [laughter.]”  Raskin was Perot’s lawyer at the time.  Federal Election Commission general counsel Laurence Noble gave an honest report saying, “there was “reason to believe” that millions of dollars in corporate contributions to the CPD were illegal contributions to the Democratic and Republican campaigns.”  The FEC overrode his analysis and Noble was soon removed from his post, which means that to top it all off the regulator was (and potentially still is) in on this unconscionable scheme!


Although the CPD was saved by the FEC in this case their legitimacy was teetering so in January of 2000 they announced a virtually insurmountable standard requiring a presidential candidate to have the support of 15% of the national electorate.  Never mind that most citizens polled by the Wall Street Journal believed third-party candidates should not have to meet this standard.  Never mind that polls are notoriously inaccurate and third-party candidates are especially disadvantaged by them and never mind that the debates are precisely how a candidate has historically gained in the polls.

In a 1992 case made by a candidate running for a house seat in Arkansas called Ralph P. Forbes the Supreme Court said a candidate's "viability" is a justified reason to preclude an independent candidate from participating in televised debates in a majority opinion written by Justice Kennedy.  This set a precedent which now operates as a pretext to exclude third-party candidates and independents from televised debates.  The author gives a number of specific cases where the Republican or Democratic nominee is less viable than a third party nominee using the same measure but where the major party nominee is nevertheless automatically included. Allowing the government to decide who debates usurps the role of the people since debates decide elections.  The First Amendment and equal protection (the Fourteenth Amendment) specifies the government has no rightful power to selectively favor chosen candidates with free television time.  Furthermore the author shows that the measures they use to judge viability are highly unreliable.  As I said before polling vastly understates first time and independent voters.  As an example we can take Russ Feingold who ran for Senate in Wisconsin in 1992 and in 3 weeks went from scoring 10 percent in a major poll to winning 69 percent of the final vote!

In the same opinion Kennedy said debates may be "faced with the prospect of cacophony."  To demonstrate the contradictions seen in rulings issued by the Supreme Court here is a quote from a 1971 Supreme Court decision on the democratic necessity to include multiple voices: "[the fact that] the air at times seems filled with verbal cacophony is, in this sense not a sign of weakness but of strength."

Solution: The author states that debates should include every presidential candidate that is on the ballot in enough states to make a win possible.

Education for democracy

The Warren Court (a period between 1953 and 1969 when Justice Earl Warren served as Chief Justice) said the process of education is the most important public function of our local governments. A 1973 decision in San Antonio Independent School District v. Rodriguez, set a very dangerous precedent by stating "states have no obligation to spend equal amounts of money per capita for students across County.. lines."

Solution: The author suggests a constitutional amendment stating that young people have a right to equal and integrated education."

Libertarianism and “laissez-faire” politics

The author dismantles libertarian tenets as hypocrisy.  Libertarians seek a "laissez-faire [minimal and deregulated] state" that only protects property rights and business contracts.  Thus it is free from restrictions relating to human rights but not free regarding property rights and business contracts.  The euphemistic title “libertarian” refers to a philosophy of selective freedoms that happen to be convenient for corporations, landlords and employers.  Lochner is a famous 1905 Supreme Court ruling, which threw out New York State’s enactment of a maximum 60 hour workweek and was a victory for the employer.  This was since reversed but libertarians seek to revive it as constitutional law.  Laissez-faire politics lives on and manifests itself in outcomes of disastrous and gargantuan proportions such as the collapses of Enron, Worldcom [and the banking crisis of 2008.]  Enron and Arthur Anderson (Enron's auditor) executives gave hard money contributions to 51 out of 56 members of the House Energy and Commerce Committee and 49 out of 70 members of the House Financial Services Committee to guarantee "deregulation."  Also, top executives at Enron used corporate assets as soft money contributions to both parties with a complete disregard toward shareholder interests.

Solution:  There should be a total ban on corporate soft money and other political contributions to national and state political parties, because democratically chartered corporations should not use shareholders’ money, invested for economic reasons, for political ends.

Legitimizing free speech of corporations

In 1978 the Supreme Court in First National Bank of Boston V. Bellotti threw out a Massachusetts’ law, which until that point, had made it a crime for corporations to make political contributions.  Justice Powell’s supporting argument was so preposterous it entirely contradicted itself.  He said the corporation’s speech might lose protection if it became too effective and he immediately went on to say that notwithstanding, if it were effective its effectiveness would be no reason to suppress it!  At this point there is good reason to question his intellect.  He went on to grant the corporation speech protection on the basis that all speech should be protected, which is simply false.  All speech is not protected.  To cite one example precedents have determined that speech on property that is privately owned and is not in public use is not protected.  No one needs a law degree to see this judge appeared to be struggling to grasp at something akin to a feasible argument, perhaps to serve other needs.  As I have mentioned in my previous articles a corporation is nothing more than an income-producing piece of property.  It is abundantly clear that the original framers of the Constitution did not feel the impulse to write the First Amendment to protect the rights of non-sentient pieces of property that exist for the purpose of turning an economic profit.

Solution: an addition to the voting amendment stating the corporation is not a person within the meaning of the Constitution.

Labor representation

The 1935 National Labor Relations Act (a.k.a. Wagner) guaranteed employees the right to engage in union activity without reprisal.  Since then labor movements have organized 40 percent of people in the private sector at times but this number has since decreased to 15 percent.  Since Wagner the rules have developed in a direction that benefits owners and management.  In 1969 NLRB v. Gisselle Packing Co. made it legal for management to make predictions about a company’s future during a union campaign.  Making threats remained illegal but from a practical standpoint it has proved quite difficult to distinguish between making “predictions” and making “threats” in court. 

Solution: The author argues that “the law should call for strict neutrality of management in a union election.”

The "Wealth Primary" 

For all intents it is impossible to run a political campaign without spending vast sums on TV, radio, campaign literature, staff etc. so the candidates must be in proper favor with moneyed power and service the political agenda of organized wealth. 

Solution: There needs to be a "constitutional imperative" for democratically financed elections, a total public-financing option for candidates.  Nothing of the sort has been passed in federal courts so far but some states have passed public-financing options.  Massachusetts requires $5 to be raised from a set number of people to qualify for public-financing (6000 people for Governor and 200 for a Representative.)  Candidates are given modest sums but the laws provide for escalator matching.  When they are publicly funded the author calls them "clean" elections.  They have been successful.  In Maine there was a 40 percent jump in contested primaries after the adoption of clean elections.  In Arizona there was a 60 percent increase in the number of candidates and a 62 percent increase in contested races after their adoption.  Because states and house districts are so large, publicly funding elections should be aided by taking back control of the public airwaves.

Solution: Raskin suggests that broadcast licenses should not be handed out with out reserving "free time for the programming of political democracy."  This would meaningfully reduce the cost of candidacy. The airwaves are a public trust and selling their use to corporations only to have to buy them back at a much steeper cost is illogical.  If Congress and the FCC cannot be made to do this there is nothing stopping the states from enforcing this for house and senate races.

The original Constitution was "deeply compromised by white supremacy and fear of popular democracy" and should not be considered sacred.

The Author explains that it is important to make changes to the Constitution and quotes President Thomas Jefferson who "detested the "sanctimonious reverence" with which some men looked at the Constitution, and said we should "avail ourselves of our reason and experience to correct the crude essays of our first and inexperienced councils."

The Supreme Court’s right wing

In the Supreme Court there exist two opposed interpretations of the Constitution.  The conservatives read the Constitution to mean state governments have any powers that are not explicitly denied to them whilst liberals view it as a "freedom charter" granting the individual any rights not explicitly denied.  An excellent case in point is taken from conservative Justice Scalia's opinion regarding abortion.  He states that a woman's right to abort her unborn child is not protected by the Constitution because it is not explicitly mentioned within it and because it has been illegal in the past. It doesn't take a brain surgeon to figure out that conserving our old ways would mean we would not have abolished slavery and we would still be denying civil, gay and women's rights.  It thus becomes quite a challenge to reconcile the conservative statism of the Supreme Court’s right wing with today's political and social system.

Conclusion

If there is a common thread running through the books I have covered, which are written by scholars on both sides, it is that they are often calling for the public-financing of elections.  By some estimates the amount required would be a meager 1/400^th of the overall budget.  If this nation could fix that problem alone there would undoubtedly be a substantial impact on the workings in Congress.  Campaign financing is the oil that lubricates the machinery, which operates on every decision made by every state, Governor, Congressperson, Senator and by the President of the United States.  Politicians are money hungry because their next election calls for it.  

The people of America are tired of the establishment. So much so they are willing to consider a candidate as imperfect as Trump, with his bigotry and his lack of understanding of key issues, just because he is anti-establishment.  The people are right (I don’t mean about Trump.)  The fact that nine non-elected, lifetime tenure persons comprising the Supreme Court justices can overrule acts passed by an elected Congress without adequate basis or meaningful accountability is madness.  The United Kingdom gets along perfectly well without having a court that can overrule Parliament.  The people of the UK can vote their leaders out, making the leaders directly accountable to the people.  That those same Supreme Court justices can decide a presidential election and that such a ruling should oppose the majority vote is madness.  That the United States political system has had non-constitutional rules imposed on it by the courts which have led to a tightly controlled two-party system and closed debates such that issues are not honestly addressed - is madness.  That elected officials can be so shamelessly bought that situations like Enron and the credit crisis of 2008 result, devastating millions of lives in America and around the world, is also madness.  To many political actors there is every incentive to maintain the status quo and that means the only likely way that things will change is through collective action.  That means you and me, getting up and doing something.  All my love!

I am Cecilia Mackie, MPhys and I worked on Wall Street for 10 years where I rose to an executive level.  The owners of a firm I worked at are now in jail.  Because of this experience I have avidly researched corruption based issues over the last few years.  Outside of this plog, I am building a tech platform which will allow people to participate in a community for political change.  The platform will have a mechanism to allow our community to enact change within the world of American politics.  

Please go to www.mackiemusic.com to access my social media pages and learn more about my polymathematical world of wonder!

UNRAVELLING THE PUPPET STRINGS OF CONGRESS WITH SETH MASKET'S NO MIDDLE GROUND

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Yes!  I'm still plogging away..

Sorry for my absence my pretty petunias!  It is partly explained by the need to completely surrender to, enshrine and otherwise consecrate the CFA charter whilst one figuratively yet painfully nails oneself to the Institute's textbooks, quick sheets, question banks and practice tests.  My absence is further explained by the fact that I have been trying to decide how best to present all the reading I have been doing.  Since my last article I have read 10 books on the subject of the American political system and its courts in the context of how the power players pull the strings and what distortions result.  Personally, I find it riveting stuff but admittedly the average person might prefer to stab themselves in the neck with a pencil.  I have decided to carry on covering the books that I found especially useful, one book at a time, and in so doing fully shield readers from their “long and boring"-ness.  The design of the technology platform I am building has been influenced by the information I gather in these readings.  I cannot properly express how excited I am about the prospect of building a platform that could potentially allow American citizens to meaningfully participate in their political system precisely where the action takes place - Congress - in a way that is fun and simple.  As I wade through statistical data and theses sprouted from colleges around the country; as I explain the required functions of the platform to clever developers who are tasked to build it and as I gather information over the phone from (sometimes helpful/sometimes cogent) offices in Congress to learn how to stay abreast of congressional action – I think I can say I am enjoying the process, mostly.  Ha.  Phew…  It’s definitely more rewarding than dating men in Manhattan (which ranks as a most utterly unfathomable task and which I will gladly leave to greater mortals than I.)

Of the books I have read recently Seth Masket’s No Middle Ground proved delightfully revealing as to who controls politics and how they control it.  This article is dedicated to that book.

Right!

Republican and Democratic nominations for seats are decided in primaries.  Masket argues that primaries typically have low media coverage and low voter turnout so they are easily controlled by legislative leaders and informal party organizations (IPOs.)  His theory is based on the fact that nominations are the key to controlling politics.  Once nominated the nominee usually wins the general election.  Of California's 88 seats only 5 were contested in 2002.  Except those 5 seats the rest were safely in the hands of a party.  Published in 2011 Masket's book contains ample statistical analysis of data to support his thesis.  He analyzes the state of California and names influential people and groups that form IPOs in the state thereby helping the reader to properly grasp who is pulling the strings and how they are being pulled. 

Masket proves empirically that most elected officials were originally nurtured within these groups.  By studying 125 officeholders in California (including congresspersons, senators, assembly members and county supervisors) and finding out what their prior employment was he surmises that roughly 9 out of 10 politicians rose out of the auspices of IPOs.  In a subsequent study he looks at 94 elections and 366 candidates between 1998 and 2004.  He finds that membership in an IPO put a candidate at a significant advantage to those who chose to go it alone.  He also explains that the groups seek to control nominations broadly in local, state and federal offices in their region so that supportive politicians can help them procure jobs, construction projects, better tax policies or achieve ideological goals.  The payoff for controlling a portion of government, in the form of subsidies, ideological benefits and preferential treatment, can be very large.

In California the IPOs are as follows.  Orange County is a wealthy area and its citizens tend to vote right of center.  Nominations in this area are influenced by 2 private clubs.  The first and oldest is the Lincoln Club which consists of conservative Republicans.  They charge an annual fee of $3500 to their members who are affluent private individuals.  Orange Country also has a more moderate Republican club called The New Majority who are a newer outfit and charge a $10,000 annual fee.   Nominations in poorer districts tend to be influenced by groups that are in the public domain.  In the poorer areas of South and East LA prominent elected officials provide the leadership forming alliances with churches, clubs and unions.  An example of a notable club in South LA is the New Frontiers Democratic Club.  Influential elected officials that aggregate donor funds and organize campaigns are Representatives Waters, Dynally and Burke.  A representative is a member of Congress.  In East LA the Alatorre-Torres machine and Representative Molina have produced dozens of officeholders out of their staff members.  Wealthy West LA nominations were controlled by the Democratic Waxman-Berman machine in the past and are now controlled by the LA County Federation of Labor.  Fresno County nominations are controlled by both sides.  On the Democratic side Labor Union 353 and Representatives Dooley and Reyes influence which candidates prevail. Priming candidates on the Republican side are chairman of the Fresno Lincoln Club Michael Der Manouel and The Sheriff and Police Officers Association.  These groups interview, recruit and train candidates months ahead of the primaries.

The gradual shift toward extreme partisanship in Californian politics over the last 40 years is starkly displayed in a series of graphs at the start of the book.  Masket attributes this to the influence of IPO groups.  He quotes Aldrich "activists tend to be ideologically extreme.. moving away from the median voter may cost the candidate votes but that may be outweighed by the resources received.”

IPOs interview candidates that are already running and look to back a horse that is likely to win. Several politicians interviewed came up with a $50,000 figure for what the candidate must be able to raise on their own.  $50,000 is not enough to win a race.  This is ostensibly what a candidate needs to raise on their own in order for an IPO to back them and cough up the rest of the money required which totals roughly $260,000 per race.  IPOs say that money raising ability is the number one skill they look for in a candidate.  

Masket argues that IPOs control politics better than alliances in congress.  Party leadership in Congress can reward or deny privileges but the IPO can simply fire the officeholder.  He cites a number of cases where this has happened.  In general incumbents are pretty safe in office (In 2002 99% of incumbents retained their seats) so IPOs are not typically executing the power they wield over the official.  Presumably they can keep officials in line partly because of the examples they have set in the past and partly because the officials were mainly born from within these systems and know the dangers well.  The evidence Masket brings to the table certainly shows the officials voting in line with the groups that put them in office.

A lot of the evidence presented in this book requires an understanding of a concept called cross-filing.  Revolting against the control political machines such as the Southern Pacific Railroad had over Californian politics a group of individuals managed to institute progressive reforms in 1914.  Cross-filing was one of these reforms.  It meant anyone from any party could run in both the the Democratic and Republican primary and party affiliation was not mentioned on the voting ballot.  This feature made it much harder for parties to effectively challenge an incumbent since a challenging candidate they chose to back would now have more challengers and would not be affiliated to a party, a fact that caused voter confusion.  The statistics presented certainly demonstrate a party’s effort to control politics became completely ineffective during the cross-filing period since candidates entirely stopped “towing the party line” (or voting with their parties.)  My favorite chart in the whole book shows the “before and after” effect of the cross-filing era which ended in 1952.  Within 10 years the change in politicians’ polarization (the extent to which politicians voted with their parties a.k.a. partisanship) was simply remarkable. 

Curiously cross-filing turned out to be bad for the average citizen.  During the cross-filing period candidates stopped responding to the requirements of parties and instead created coalitions (often attached to the speaker) and were more readily acquiescing to the wants of donors or business groups.  As proof, Masket goes on to show several graphs depicting clear voting patterns of coalitions formed around a specific speaker at different points during the cross-filing period. 

During the cross filing period Masket states that voters needs were not being met even though it looked like they were.  The speaker has the power to appoint committee personnel and to decide if and when a bill makes it to the floor.  Lobbyists only demanded candidates vote their way when voting for the speaker.  One member was quoted as saying he could be a free agent 99% of the time and vote according to the desires of his district as long as he voted for the right speaker so the lobbyists could “bottle up the bills.”  This behavior is still commonplace today.  As a demonstration of how the formation of these speaker coalitions has become standard practice in California Masket goes on to list a number of recent speakers and the reported sums raised by each speaker from lobbyists.  These sums would then be doled out by each speaker to support candidates running for office. 

Masket's base line message is that today’s IPOs are more ideological than average Americans.  Candidates need the support of the IPO more than they need the voter so they vote to meet the desires of the IPO.  But compared to the older systems we have got closer to meeting the citizen’s needs. IPOs came into existence after cross-filing and became an effective counterweight to private benefit seekers and the speaker’s organization.  Masket argues that the organized party system is a better environment for the poor to have a mechanism with which to fight for and effect changes to their rights.

As if this evidence were not enough Masket presents the results of a survey he did on 25 politicians, staff members, lobbyists and other industry insiders in which 68% of insiders surveyed said nominations are controlled by a network of donors, officeholders and activists.

The conclusions of the book are as follows: 1) Parties consist of a variety of actors inside and outside politics; 2) Candidates need these organizations to win no matter how well funded they are; 3) They are not structured like the traditional party organizations of yesteryear and avoid most of the corruption.  However, they are not representative of the median voter.

Some solutions to this conclusion (namely to the fact that our elected officials do not represent the voter) would be to work on increasing voter turn out in primaries and to publicly finance primaries. 

My last article which covered campaign finance reform arrived at a similar conclusion.  I will reiterate the point I made then.  The cost of publicly financing elections was found to be one four hundredth of the overall budget.  Clearly it is well worth spending that sum to ensure the rest of the budget is allocated without the distortion introduced when candidates are relying on donors for reelection.

That's that!  In the words of the illustrious Arnold Schwarzenegger: “I’ll be back..”

I am Cecilia Mackie, MPhys and I worked on Wall Street for 10 years where I rose to an executive level.  The owners of a firm I worked at are now in jail.  Because of this experience I have avidly researched corruption based issues over the last few years.  Outside of this plog, I am building a tech platform which will allow people to participate in a community for political change.  The platform will have a mechanism to allow our community to enact change within the world of American politics.  

Please go to www.mackiemusic.com to access my social media pages and learn more about my polymathematical world of wonder!

A STUDY ON CAMPAIGN FINANCE REFORM

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Here I am, once again taking the “long and boring” out of important books that affect our lives today by plogging for joy!

Trump’s and Sanders’ unexpected success in the March 1st, 2016 primaries was an anti-establishment cry from the American people.  Americans feel powerless to change a system that does not deliver results for the average person.  Campaign finance reform is a perfect example of an area of politics in which the average person’s desires are not being met.

An ABC–Washington Post poll conducted in 2010 showed that 80% of those surveyed opposed the idea that “corporations and unions can spend as much money as they want to help political candidates win elections.”  The influence of lobbyists and special interests strikes deep in the hearts of American citizens yet in 2010 a case brought to the Supreme Court by Citizens United ruled that there would be no limits on what corporations could spend to influence campaigns.  Obama stated the decision “gives the special interests and their lobbyists even more power in Washington” and “strikes at our democracy itself.”  The ruling sounds wildly off base and caused quite a stir in the media.  I wanted to understand the intellectual rationale behind such a seemingly counter-intuitive decision by the Supreme Court.  In 2010 The New York Times called Bradley A. Smith the “intellectual powerhouse” behind the movement to deregulate campaign finance.  In this post I will review his book, which makes the intellectual case for the ruling (or for deregulation.)  The book is called Unfree Speech: The Folly of Campaign Finance Reform and was published in 2001.  Fully versed on the subject and its legal history, Smith served as Commissioner, Vice Chairman and Chairman of the Federal Election Commission between 2000 and 2005 and is a veritable industry insider.  He is currently a professor at Capital University Law School.  I will then review a study that combines the results of multiple studies done on the effect that campaign contributions have on voting in Congress.  Finally I will summarize the Supreme Court judges’ statements on the Citizens United ruling and the public reaction to the ruling from commentators on both sides.

The contention over campaign finance law exemplifies the difficulties of government intervention. We know that while regulation has become more stringent in the last half century, we have seen decreased competitiveness in elections.  The more competitive our elections are the more accountable elected officials will be for their actions.  About 95 percent of elected officials that ran for office again were re-elected in 2014 yet 86 percent of Americans disapprove of Congress.  What is not clear is why reform has not had a positive impact on these crucial statistics.  That’s because there are a number of conflicting issues in the area of campaign finance reform and those issues are what I intend to shed some light on in this post.

Smith’s book is clearly presented and densely packed with history and citations of studies and case law.  Also, his desired ends appear to be the same as those of the reformist movement.  He believes that his prescription will allow us to arrive at a more competitive and democratic system.  The only criticism I have is that Smith seems like he is more intent on selling his case than he is on giving an unbiased view of both sides.  My favorite type of author gives me the feeling that he or she is determined to arrive at as good a characterization of reality as they can muster.  This shortcoming makes me suspicious as to whether I should swallow the overall thrust of Smith’s case.  But since his argument is quite solid and well researched a layperson like myself comes to a bit of a dead end as to what the correct solution to the matter is.  That’s because I could not find an intellectual rebuttal to Smith’s case in any publication and since the matters Smith deals with are technical and require the knowledge of an industry insider I cannot rebut his points myself.  I get the feeling that intellectuals have been trying to sweep this book under the rug in the hopes that if they do not give it any attention it will eventually be forgotten.  Clearly that strategy has not worked.  If a majority of the Supreme Court judges were intellectually captured by the merits of Smith’s case to the extent that they have taken control of the law itself, as was seen in the game-changing Citizens United ruling, then those merits can no longer be ignored.

Bradley A. Smith.  Unfree Speech: The Folly of Campaign Finance Reform

Smith opens the book with a series of anecdotes showing the ostensible results of campaign finance reform and how the laws tend to be targeted towards the grassroots activists that the constitution sought to protect.  Here are just two of the examples he cited.

The Federal Election Campaign Act (FECA,) passed in 1971 was the toughest campaign finance regulation the United States had ever seen.  On May 31, 1972 a group of lawyers, a Senator, a law professor and others paid $17,850 to publish an advertisement asking for Richard Nixon to be impeached.  The US Department of Justice sued the group in the first enforcement action ever bought under FECA.  “For the first time in history, Congress had passed a law requiring citizens to register with the government in order to criticize its office holders.”

On April 27, 1988 Margaret McIntyre passed out handbills outside a school in Ohio in protest against a school tax-hike.  The handbills criticized wasteful practices of the school board and broken promises made before the last tax-hike.  An assistant superintendent of the school district J. Michael Hayfield filed charges against McIntyre for violating the Ohio elections code by distributing “anonymous” campaign literature and she was charged, found guilty and fined. 

Shortly before finishing the book, Smith was nominated to a seat on the Federal Election Commission.  He states, “Life on the FEC can be summed up as follows:  We see many complaints, [some are violations of FECA, some are not].. but virtually none have anything to do with special interest influence or the prevention of corruption.” 

I will briefly summarize Smith’s history of campaign finance law in this country

The first campaign financing legislation was passed in 1907.  Smith argues that in the first half of the 1900s the several laws that were passed to ban corporate contributions, require disclosure and limit house and senate race amounts were largely ineffective since there was no enforcement provision which meant the laws were circumvented.  In 1943 after a wartime strike, laws were temporarily put in place banning contributions from unions only during wartime to protect the war effort.  It was then that the first Political Action Commitees (PACs) were formed by unions to circumvent the ban.  Decades later in the transformative FECA act of 1971, unions lobbied to sanction the use of PACs and during the bargaining, the use of PACs was extended to corporations.  Ironically the now vilified PACs were first created by unions and the FECA reforms increased and institutionalized corporate political activity.

Political spending, which was dampened by the Great Depression and World War II took decades to ramp up. 1948 spending was the lowest since 1880, $140 million was spent on the 2 year election cycle leading up to the 1952 presidential election, $200 million was spent leading up to the 1964 election, $540 mill was spent leading up to the 1976 election.  In 1971 the Federal Election Campaign Act (FECA) was passed.  It closed loopholes by putting penalties in place for non-disclosure.

Shortly after FECA the Watergate scandals of 1972 – 1974 broke.  Throughout this book Smith tries to convince the reader that we do not need reform because enforceable disclosure is enough.  He argues that Watergate proved that revelations caused by enforceable disclosure, and the public reaction to those revelations, showed that on its own disclosure is an adequate deterrent.  Watergate allowed the reform lobby to push for tighter reforms in 1974 amendments.  Between the 1971 and 1974 changes, enforceable disclosure, public campaign financing, spending and contribution limits were the new regime. These are the four cornerstones of what is thought to be a sound system.  Thus by 1974 a great part of the battle for campaign finance reform had been won.

This reform was immediately challenged in court by Senator James Buckley et. al. exemplifying a very problematic part of the American political system.  In parliamentary systems throughout most of Europe the courts cannot overrule legislation that has been decided by parliament.  Here in the US a bill that has been passed by the two chambers of Congress, The House and The Senate, can be overturned by a majority of the 9 Supreme Court judges.  In other words it only takes 5 judges to overturn a bill that has been scrutinized by hundreds of Senators and Representatives.

In the Buckley ruling of 1976, the court threw out the restriction on spending on the basis that in the act of spending an official is not being bribed.  The court upheld limits on contributions.  This created a central tension.  Spending was unlimited so donors just had to find a way to contribute that circumvented the rules and they have since found a number of ways to do that.

This book was published in 2001. Smith wrote an updated preface in Sept 2002 by which time the Bipartisan Campaign Reform Act (BRCA) of 2002 had been passed.  According to Smith BRCA was very far reaching legislation.  BRCA fueled the “Citizen’s United” suit which was mainly brought about to fight BRCA §203.  He states that among the scandals that were used to fuel the passage of BRCA two “stand out,” those of Enron and the Clintons.  He explains in detail why the wrongdoings of the Clintons and their personal friends who sought and received pardons in the closing hours of Clinton’s administration were, in their majority, related to gifts and actions which would not be banned under BRCA.  He argues that Enron’s campaign contributions brought the company “no assistance in court.”

Those are the main points regarding campaign finance law history.  Here are the saliencies of Smith’s intellectual case against campaign finance reform.

Limiting contributions - the unwanted effects on campaigns

According to Smith, overall our effort to reform the system has had a number of unintended consequences that are “undemocratic.”  Contribution limits have entrenched the status quo and favored incumbents.  That’s because the need to raise a lot of money from lots of contributors benefits those who have a database of past contributors.  Incumbents start with name recognition, are able to attract press coverage, receive assistance from their staff and have the privilege of free postage when mailing constituents!  These perks have been estimated to add up to several hundred thousand dollars.  The way to help any potential candidate with good ideas is to make it easier for political newcomers to raise money and that usually means finding large contributors.  Similarly, putting caps on spending merely concentrates political power with those who do not need to spend as much i.e. those who already have name recognition.  Smith believes that limiting spending may also have the unintended consequence of increasing voter ignorance, as candidates are being limited in what they can spend to reach constituents with their message.  It has also strengthened the power of the wealthy and upper middle class because it works against candidates who represent the interests of the working class and who have historically relied on wealthy sympathizers since their constituents cannot afford to donate.  Keeping contributions low has had the added negative effect of diverting the attention of the elected official away from official duties.  The contribution limit of $1000 has not been adjusted for inflation since 1974!!  Finally Smith makes the point that we should not be so worried about large donors contributing to campaigns because elected officials need votes not dollars.  Dollars only help by getting an official’s agenda heard.  If the agenda is not what the public want to hear it won’t translate into votes.

The Buckley decision held that congress could not limit the amount a candidate spends on his or her own campaign.  Because of this the millionaire candidate phenomenon has been renewed.  Smith argues that limits on contributions have made debates void of substance, as politicians do not wish to alienate a broad donor base.  He states, “It is no surprise that in the 1992 and 1996 presidential campaigns, the candidates who seemed most determined to discuss substantive issues were Ross Perot and Steve Forbes, self-funded multimillionaires.”

Money – The easiest way for the average citizen to contribute

Smith argues that spending money is only one of the ways to influence the public and that retracting it only puts those with other ways to wield political influence at an advantage.  Having access to the press via stardom or because you control the media are examples.  There is no good reason why actors and journalists should have more access to influencing voters than a wealthy entrepreneur especially since persons of influence do not represent the average American.  Smith argues that people “of wealth” are more representative of the American public.  The average person is 8 times more likely to describe themselves as conservative than a journalist.  “A recent study suggests that 30 million Americans could make a $1000 donation.”   Yet 89 percent of Washington press corps reporters and bureau chiefs voted for Clinton in 1992 vs. 43 percent of the population and 80% of academics identify themselves as democrats.  On the other hand 40 to 60% of contributions from corporate PACs give to Democratic Party candidates despite the belief that the Republican Party favors corporations.  It should be no surprise that the wealthy are more homogenous. Due to the fluidity of wealth in American society many of the rich have been poor and or have poor friends and family.  In fact money is a source for expanding political influence beyond a “narrow political caste.” “..we must realize monetary contributions are one of the most popular and egalitarian ways in which Americans participate in political campaigns.”

The unintended legal encumbrances of campaign finance reform

Campaign financing reform has created complex filing requirements has had the perverse effect of favoring those with money and expertise in the regulatory mechanics and legalities and has distanced the system from ordinary citizens and grassroots efforts.  It has also had the unintended consequence of making litigation a campaign tactic.

Government financed campaigns

Smith actually suggests government financing as one of the best options we have.  I find Smith’s posture here very redeeming since public funding is not the common plight of a conservative.  He states that a system of government financing of political campaigns will probably also reduce administrative costs.  As proof, he states that the FEC spends far less on administrating the “federal presidential campaign fund” (the government fund which currently finances presidential campaigns) than it does on enforcement, audits and disclosure of every other area of campaign financing.  Overall government-financed campaigns could have the triple benefit of saving money, increasing competitiveness and preventing the need for candidates to waste time fundraising.

He outlines a way to go about it.  From a technical standpoint courts have found that constitutionally, you cannot require candidates to take public funds and limit their spending.  Thus government financing proposals must draw candidates into optional schemes of public financing and voluntary spending limits.  This could be done if Americans could be persuaded to fund campaigns adequately from the public till.  Smith’s anecdotes demonstrate that it is not beyond the ineptness of Congress to spend months passing a bill, which proves inadequate in terms of improving the system.  The amount of money given for each type of race must be adjustable based on features like inflation or by using a measurement of the cost of enabling a new candidate to get their name and message out to a constituency.  Smith argues that current campaign financing levels are not very high.  At the time this book was published Smith claims that US political expenditures constituted just .05 percent of GDP.  GDP was about $10 Trillion that year (taken from The World Bank’s website.)  The budget was $1.8 trillion (taken from the budget issued by the Executive office of the President.) Thus US political expenditures were one four hundredth of the total Federal budget.  Our author then asks us to take a different perspective.  Apparently an analyst has calculated that to properly reach 300 million people there must be a presidential campaign expenditure of $600 million.  The amounts he suggested to adequately fund campaigns were: $30 mill for the general nomination of a major party Senate nominee in California, $8 million for a Senate nominee in Ohio and $2 million or more for a house nominee in any district.  Since in the 1997 to 1998 election cycle only 39 house candidates took in over $1.5 million, most candidates would probably accept the government subsidy.  That would then be conditional on a spending limit.  In a study of Wisconsin’s system by Mayer and Wood they argued, “a well-designed and adequately funded public finance program can dramatically increase competition levels.”  The biggest problem is that this solution is dependent on the government adequately funding campaigns.  According to Smith “There is no hint of a political will to dramatically expand the levels of tax financing.”  It is too easily labeled as “welfare for politicians.”  A second problem is that government spending means challengers will never be able to spend more than an incumbent and challengers that outspend an incumbent are the ones that are usually able to win.  The chances of success in getting adequately funded government financed campaigns through are slim.  Furthermore the presidential race which is now 100% government financed is an example of the potential result of such a system.  Smith thinks that due to publicly financing the Presidential race, soft money (a loophole from a 1978 FEC ruling) has becoming a widely used tactic. An example of this was the $33 million that came from “corporate sponsorship” to pay for Republican and Democratic national conventions in 1996, labeled as such to circumvent spending limits.  Smith says because the government spends $1.5 Trillion a year and regulates numerous industries, those industries are likely to find loopholes however draconian the system.  Thus, government funding might help, but not unless reform groups raise the current limits seen on contributions and spending so that politicians don't feel the need to raise money elsewhere, and none of the reform groups are considering a government-funding proposal without these caps.

Incumbents manipulate laws to protect their seats

Incumbents who seek to protect their seats will always manipulate new laws.  To demonstrate this, when Congress debated spending caps in 1997 the bills establishing those caps were set at levels which made it impossible for challengers to be competitive. “Only 3 percent of challengers spending below the proposed limit for House races had won in 1996 whereas 40% of challengers spending more than that limit had won.”  In other words Congress was seriously debating a bill which, based on the previous year’s election, would give challengers a 3% chance of winning!!  Another problem with the system is it is structured so Republicans and Democrats have the same amount of money, and more than any other party’s nominee.  The result is a system that is rigged to favor major party nominees.

Constitutional arguments

Let me make a simple note here regarding why the First Amendment comes up when we talk about money in politics.  The First Amendment protects the rights the people and the press have to free speech.  In US courts money and speech have been equated because “all communication in modern society requires at least some expenditure of money.”

Smith discusses at length the constitutional arguments made by different courts that affect this field of study.  I read it all and I found the arguments to be relatively unimportant and overly focused on semantics.  I am concerned with pragmatic policy that suits our time.  The constitution is arguably well composed.  However, it was written over 200 years ago at a time when people lived under an enormously different set of circumstances than we do today.   At that time the population was under 4 million and there were only 13 states.  Our population is almost 100 times larger, substantially more enfranchised, better educated and well informed.  Our standards of living are much improved.  Simply put, life is entirely different. 

Nevertheless I will mention one point Smith makes which strikes me as notable.  The First Amendment states: “Congress shall make no law... abridging the freedom of speech, or of the press…”  Since First Amendment rights are fundamental rights, if government regulation burdens those rights it is subject to “strict scrutiny” and must be “narrowly tailored” to the least restricted means.  FECAs disclosure laws are a less restrictive means than FECAs spending and contribution limits.  Smith argues that enforceable disclosure alone is a sufficient means of preventing corruption whilst minimally encumbering First Amendment rights.

Regulation has been fraught with the need to create endless distinctions

Over the past two decades [as of the time the book was first published in 2001] the Supreme Court has attempted to distinguish between the right of the individual to spend unlimited sums on his own campaign and contributing unlimited amounts to the campaigns of others.  It has distinguished between spending on campaigns, which are limited, and spending on ballot issues, which may not be.  It has tried to distinguish between expenditures by media corporations, which are not limited, and expenditures by non-media corporations, which are.  The courts allowed large donations to offset party expenses that have now been dubbed “soft money” and have been vilified.  They allowed political parties to spend on polling, get-out-the-vote drives and generic advertising in 1979 in order to strengthen the parties and such spending is now considered a “loophole.”  Proposals to ban bundling, to reduce contributions outside a representative’s district and to put limits on “issue ads” have all been attempted.  Smith draws our attention to the opening words to the First Amendment “Congress shall make no law..” which is explicitly calling for no government interference in speech and yet the courts find themselves imposing “ever-increasing restrictions on speech.”

The future of campaign finance reform

Smith finds it notable that reform groups often talk about a corrupt system without specifying the corrupt persons or pointing to specific events.

He explains that campaign spending has risen for very understandable reasons.  One of the main reasons is growth in the electorate that has grown much faster than the population.  Women were enfranchised in 1920, eighteen year olds were given the right to vote in 1971 and the Voting Rights Act of 1964 successfully enfranchised more black voters in the south. The electorate greatly expanded during this period until the early 70s.  Smith makes the incredibly compelling point that spending on a per voter basis has hovered around $2.50 to $3.50 since the early 70s and remains lower than several democracies including ones much poorer than the US like Venezuela, Italy and Israel.  Another factor that has led to increased spending since the beginning of the 19th century is the new style of campaigning which has given voters much more direct exposure to candidates.  Mass media forms of communication like radio and television have driven costs higher.

But, Smith argues, the single biggest reason spending on campaigns had gone up is that government size has gone up.  While the government spends $1.8 trillion and controls areas from health to farmland use, contributions will find their way into the system through one loophole or another.  Smith argues that campaign finance reform has grown with the size of government that had growth spurts at the end of the nineteenth century and implemented the great society programs of the 1960s.  Smith believes the only time special interests will stop spending will be when they do not want to spend any more.

“At work here is a fundamental failure to analyze correctly the workings of politics.  It is simply wrong to assume that eliminating money as a form of influence will, in some way, increase the influence of an average citizen.”

“..solutions imposed have made the problems worse.  Campaign finance regulation has helped to insulate incumbents, hindered grassroots political activity, infringed on free speech and made campaigns longer and devoid of content.”

Can it be true that we are doing more harm than good when we regulate campaign contributions?  Smith’s argument is not entirely preposterous.

______

“A Meta-Analysis of Campaign Contributions’ Impact on Roll Call Voting” by Douglas D. Roscoe and Shannon Jenkins, University of Massachusetts Dartmouth, published 2005.

Congress consists of two chambers, the Senate and the House.  A roll call is the name given to a vote on a bill and it happens in both of these chambers of Congress.  In his book Smith explicitly states, “It has been shown that campaign contributions play little role in floor voting.”  I am adding commentary on the above study to refute that statement.  Many academics have tried to argue that research has failed to establish a significant relationship between contributions and roll call votes and this has become somewhat of a conventional wisdom.  However, the above paper written by Roscoe and Jenkins gathered data on a comprehensive number of studies comparing contributions to roll calls.  It combined the results of all studies (and importantly compared the calculations used in each study which is called meta-analysis) and concluded that one-third of roll call votes exhibit the impact of campaign contributions.  What is perhaps of most concern here is that in general, all the studies controlled for (in other words ignored) contributions that were given to legislators that shared the donor’s ideology.  That means legislators were found to vote against their own ideals because they had received a financial contribution one third of the time!  Furthermore, contributions given to legislators that share the donor’s ideology should not be ignored.  If a corporation can line the pockets of an incumbent that shares its ideology that incumbent will be tougher to beat.

Citizens’ United
(Extracts taken from Wikipedia)

Citizens United v. Federal Election Commission, is a U.S. constitutional law case dealing with the regulation of campaign spending by organizations.  It was decided in 2010 and was won by a narrow 5 to 4 majority of Supreme Court judges.  By allowing unlimited election spending by individuals and corporations, the decision has “re-shaped the political landscape” of the United States.

The term “the majority” means the five judges that voted in favor of the case.  The dissent consists of the remaining 4 judges.

Notable extracts from author of the majority opinion, Justice Kennedy’s argument:

In its opinion the majority states, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”  The majority then goes on to use this to justify that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment’s protection of free speech.  The majority argues that corporations are associations of people.  Well, no.  Corporations are the property of people and are much like any other income producing investment such as a building.  It is absurd to grant fundamental rights of self-expression to a piece of property.  The majority opinion goes on to say “..the First Amendment does not distinguish between media and other corporations..”  Well, that’s simply wrong.  The First Amendment explicitly mentions “the press” and does not mention corporations.  Therefore it clearly distinguishes the media (the press,) from corporations or from anything else you would like to mention, such as artichokes, which, like corporations are also omitted.  The majority opinion goes on to say “[the restrictions on corporations' speech] would allow Congress to suppress political speech in newspapers, books, television, and blogs.”  Well, no.  That would be silly.  Restrictions on corporations’ speech (or that of any other object omitted from the First Amendment, like an artichoke) would not affect the rights explicitly granted to “the press” by the First Amendment.  

Then the majority argues that granting First Amendment protections to media corporations but not other [corporations] presents a host of problems.  Ok.  This is a (only slightly) more grounded argument.  The problem suggested by the judge no doubt refers to the fact that limiting corporate political participation has the unintended consequence of making the voice of the media more powerful.  A biased media is an intractable problem which may need to be addressed.  But the idea of allowing both evils (a biased media and corporations) to sway elections for the sole purpose of not making one evil stronger is, in isolation, not a good basis.

In what I have extracted here from his comments, in complete fairness Judge Kennedy has presented a load of rubbish.  Just being blunt.  Sorry.

Notable extracts from author of the dissenting opinion, Justice Steven’s argument:

Stevens argued that the Court’s ruling “threatens to undermine the integrity of elected institutions across the Nation." "The path it has taken to reach its outcome will, I fear, do damage to this institution.”  “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

“Stevens argued that the unique qualities of corporations and other artificial legal entities made them dangerous to democratic elections. These legal entities, he argued, have perpetual life, the ability to amass large sums of money, limited liability, no ability to vote, no morality, no purpose outside profit making, and no loyalty.  Therefore, he argued, the courts should permit legislatures to regulate corporate participation in the political process.”  “The First Amendment, he argued, protects individual self-expression, self-realization and the communication of ideas.  Corporate spending is the “furthest from the core of political expression””

“Stevens argued that corporations “unfairly influence” the electoral process with vast sums of money that few individuals can match, which distorts the public debate.  Because a typical voter can only absorb so much information during a relevant election period, Stevens described “unfair corporate influence” as the potential to outspend others, to push others out of prime broadcasting spots and to dominate the “marketplace of ideas””

Steven’s closing statement:

“At bottom, the Court’s [decision] is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.  It is a strange time to repudiate that common sense.  While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

Support:

Several voices in support of campaign financing state that from a practical perspective regulating corporate money has only served to protect incumbents and make elections less competitive.

Some other interesting notes from supporters are:

Eugene Volokh, a professor of law at UCLA, stated that the “most influential actors in most political campaigns” are media corporations, which “overtly editorialize for and against candidates, and also influence elections by choosing what to cover and how to cover it.”  “Holding that corporations like Exxon would fear alienating voters by supporting candidates, the decision really meant that voters would hear “more messages from more sources.”"

Criticism:

In September 2015, Senator Bernie Sanders said that “the foundations of American Democracy are being undermined” and called for sweeping campaign finance reform.

The New York Times stated in an editorial, “The Supreme Court has handed lobbyists a new weapon. A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election.”

Constitutional law scholar Laurence H. Tribe states [there is a] very real injustice and distortion entailed in the phenomenon of some people using [shareholders’] money to support candidates the shareholders have made no decision to support, or to oppose candidates they have made no decision to oppose.”

Conclusion

Without meaningful competitiveness in elections incumbents are not incentivized to act for the benefit of American citizens.  This is a baseline issue in American politics.  If you read my last plog post you will remember that notorious lobbyist Jack Abramoff called for an introduction of term limits so that elected officials do not develop long standing relationships with lobbyists.  His notable experience influencing elected officials on behalf of special interests has led him to believe that re-electing an incumbent time and time again was corrupting to the political process.

After a century of experience with campaign finance reform we find the field of seasoned Supreme Court judges split between those that think that regulation is bad and those that think we must regulate.  That is because the intellectual case for each side is plausible.  Maybe it’s time to realize that both sides may be right.  If we do not regulate, then the message can become saturated by forces that seek to change the system to serve special interests over the interests of the average citizen.  If we do regulate, then we make the situation worse by concentrating political power in even fewer hands and we experience the unintended effect of reducing competitiveness which in turn reduces accountability among elected officials.  Maybe we will never succeed in improving the system until we adequately fund elections publicly.  As you can see, Smith’s rhetoric reverberates through the opinion of all those in favor of deregulation.  If Smith, the intellectual bastion of the conservative movement, suggests this as a solution and on the liberal side there is plenty of support too, then decades of experience with campaign finance reform may have unified both sides in this respect.  Perhaps it is time to realize that until we adequately fund elections publicly we will not improve the statistics regarding incumbent re-election rates, we will not reduce the effect contributions have on roll calls and we will not change the fact that candidates spend far too much of their time raising money instead of doing their job.  Perhaps, whether we do so immediately or down the line, we must accept that the current ongoing battle between each side to regulate and deregulate necessitating seemingly endless litigation, involving a minutiae of distinctions and a never ending closure of loopholes will never come to improve these crucial aspects of our political system.  According to Smith, In 2001 US political expenditures constituted just 0.25 percent of the United States' federal budget.  If campaigns only cost one four hundredth of the total federal budget, that is a very small price to pay to ensure our elected officials are not allocating the budget in the wrong way for the wrong reasons.  We don’t know for sure whether Smith and all the other experts that believe government funding may improve things, are right.  What we do know is that after 45 years of enforceable reform measures there has been no physical improvement in key statistics.  It would seem sensible to try a different course to test whether these “pro-public funding” experts are right.  Scientists can pontificate about this and about that but in the end they must do experiments and the data must yield results, for their theories to have any meaning in the real world.

In Obama’s final State of the Union address in January 2016 he mentioned three things he would change about America’s political system.  When the most important man in politics mentions the top three things he wants to change, you listen. One of these things was to reduce the influence money has on politicians.  He said he hates raising money and he thinks most politicians do.

Another item on Obama’s short list was gerrymandering.  Right now Senators can change the borders of their district to include constituents that are likely to vote for them.  I can’t think of one good reason to continue to allow that.  It needs to stop.

In my next post I will be covering a book by Francis Fukuyama, published in 2015 called Political Order and Political Decay.  This book clearly explains the problems with America’s political system, what makes it different from most western systems and why it means that Congress can’t get anything done.  In the meantime I am working hard to build and deliver the tech platform I have been promising, which has the potential to help in all these areas by creating a system outside the system, a unifying force.  Stay tuned to follow this exciting journey!

I am Cecilia Mackie, MPhys and I worked on Wall Street for 10 years where I rose to an executive level.  The owners of a firm I worked at are now in jail.  Because of this experience I have avidly researched corruption based issues over the last few years.  Outside of this plog, I am building a tech platform which will allow people to participate in a community for political change.  The platform will have a mechanism to allow our community to enact change within the world of American politics.  

Please go to www.mackiemusic.com to access my social media pages and learn more about my polymathematical world of wonder!