The NY Times penned one of those editorials Wednesday that makes one wonder who is home. The Times takes President Obama to task for forming a Super PAC--or for having someone form a Super PAC for him, because we know there is no coordination between the Super PAC and the Super PAC's beneficiary. As cynical as the current Super PAC frenzy is, and as disheartening as the crush of money being spent by the Republican Super PACs and hoarded by Karl Rove's Super PAC is, what would be served by President Obama refusing to feed at the trough? Recall, he is the first Presidential candidate since 1974 to opt out of the public matching funds system. The idea that he might run as an anti-big-money candidate is hard to imagine, so how could he meaningfully run a campaign claiming on principle to be opposed to the influence of big money, as the Times editorial suggests.
I am in Berlin where on Monday I gave a Keynote Talk to open the State of the World Week in Berlin, sponsored by the European College of Liberal Arts of Bard. My talk was on the Citizen United court case, the case that opened the door to Super PACs. I'll be blogging more about Campaign Finance Reform as the election progresses. But for now, here is a short excerpt of one part of my talk that offered a condensed history of Campaign Finance and Campaign Finance Reform in the United States.
We can divide the history of Campaign finance in the U.S. into 7 stages.
1. The first stage is the pre-History involving the 1787 Constitutional Convention. As Zephyr Teachout has shown, "Corruption was discussed more often in the Constitutional Convention than factions, violence, or instability. It was a topic of concern on almost a quarter of the days that the members convened." Teachout and Lawrence Lessig have argued that there was a strong sense among the founding fathers that the great threat to new Constitution was corruption. And they have pointed to a number of practical responses to that threat in the Constitution itself. These include Article I, Section 6, Clause 2, which prevents members of Congress from holding civil office while serving as a legislator, or from being appointed to offices that had been created—or in which the compensation was increased—during their tenure. The point was to prevent members of Congress from using their posts to enrich themselves and their friends.
Another innovation aimed to prevent corruption was the decision to have those in the House of Representatives serve only for two years. According to Teachout and Lessig, this was designed to counter the formation of bonds between legislators and the President. By turning over the members of the House on a regular basis, it would be less likely that the Representatives would form strong alliances with members of the Executive branch, thus helping to maintain their independence. The founding fathers would surely be astounded by the incumbent advantages apparent today.
2. The Second stage of American campaign finance history runs from the passage of the Constitution until the election of Andrew Jackson in 1828. In early U.S. elections, most campaign expenses were paid directly by the candidates using their own money. Such expenses were relatively minimal, going toward an occasional campaign pamphlet and, sometimes, for food and drink at rallies. As Bradley Smith writes, "Though free from the "corrupting" effects of money, elections in this early period were generally contested by candidates representing aristocratic factions standing for election before a relatively small, homogeneous electorate of propertied white men."
3. The financing of American political campaigns begins to become interesting in 1828, with the election of Andrew Jackson. Jackson's presidency is rightly seen as the true beginning of modern American democracy. And Jackson's campaign for President was the first presidential campaign that appealed directly to the voters and not simply to party elites. Jackson's campaign was organized by Martin van Buren (who later served as his Vice President and thereafter as President). Van Buren was one of the original machine politicians from New York who created the machine concept Boss William Tweed would perfect later in the century at Tammany Hall. What Van Buren did for Jackson was to organize a campaign aimed at the people. This cost money. And what he and Jackson did was to raise money from those who were seeking jobs in the government. This was the beginning of the spoils system, whereby political campaigns were funded by current and prospective government employees; these employees in turn expected to be rewarded with jobs once their candidate won the election.
4. The spoils system lasted until the passage of the Pendleton Act, in 1883, which inaugurates the fourth stage of the development of campaign finance. The Pendleton Act professionalized the Federal Civil Service, instituting an exam for entry into the service and outlawing the Spoils system. The result was that campaign funds from federal officeholders dried up, and politicians needed new sources of funds. The obvious sources were wealthy individuals and corporations. And oh boy did corporations jump into the breach. By the late 19th century, the government was giving grants of land and cash to corporations, and in return the corporations were generously funding political campaigns. In 1888 40%, of Republican national campaign funds came from Pennsylvania manufacturing and business interests. By 1904, 73% of Teddy Roosevelt's presidential campaign funds were raised from corporate contributions. (I take these numbers from Bradley Smith). The age of corporate funded campaigns was here, and it has never left.
5. Once he was elected, Teddy Roosevelt made it a priority to reform the broken campaign financing system that he had exploited so well. With his support, Congress passed the Tillman Act in 1907, which made illegal all campaign contributions from corporations. The Tillman Act opens the Fifth stage of the development of Campaign Finance Reform in the United States.
While the Tillman Act carried penalties for its violation, it instituted no enforcement mechanism. The result is that not much changed. To take only one legendary example, in 1968 and 1972 Clement Stone contributed up to $10 million to President Richard Nixon's Presidential campaigns. Stone's contributions caused a scandal that, together with the outrage over Watergate, led Congress to finally institute a serious attempt at campaign finance reform.
6. The key moment of modern campaign finance reform is the passage of the Federal Election Campaign Act (FECA) in 1974, and the Supreme Court's partial upholding and partial overturning of that law in Buckley v. Valeo in 1976. In the wake of Watergate and the loss of trust in government, the Congress passed FECA which: limited individual contributions to individual candidates to $1,000; limited the amount candidates could spend on a campaign; established a system of public financing of campaigns that required a voluntary limit on campaign expenditures; required that candidates, parties, PACs and groups engaging in express advocacy disclose their fund-raising and spending; and created the Federal Elections Commission, to regulate and enforce the new rules.
In a landmark decision that still controls all legal approaches to the regulation of campaign financing, the Supreme Court in Buckley v. Valeo upheld the disclosure requirement and the limits on individual contributions. It also upheld the limits on campaign spending when those limits were voluntary and in conjunction with the decision to accept public financing. But the Court struck down compulsory limits on spending both by individual candidates and by PACs and other groups. While the Court recognized that limits on campaign spending were a kind of censorship that limited the rights of people and corporations to speak about the most central political issues of the day, it also acknowledged "large contributions threaten the integrity of our system of representative democracy." Because large contributions, especially to individual candidates, at the very least appear to suggest a kind of quid pro quo corruption, the Court accepted that Congress has the right to censor such expressions of support. More general expenditures not given to or coordinated with a specific candidate were, the Court argued, not examples of the kind of corruption that would allow Congress to override the fundamental free speech interests of individuals and corporations who would want to influence the political debate. Thus, post-Buckley, the rule was: The Constitution limits censorship of political activity, political speech and political spending on campaigns. Any limit is censorship that violates the First Amendment. And yet the Court carved out One Narrow Exception: speech or activity that either is or gives the appearance of quid pro quo corruption could be regulated and banned.
In the aftermath of Buckley v. Valeo, money continued to pour into politics. Candidates and their supporters made use of "soft money," money given to political parties and other groups and thus not subject to the limits imposed on individual contributions to individual candidates. PACS began to bundle large sums of money that, while not individual contributions to candidates, nevertheless carried the tint of influence peddling. In the year 1993-94, the Democratic Party received $45 Million dollars in "soft money" and the Republic Party received $59 Million. By 1999-2000, the numbers were $92 Million and $244 Million respectively. In 2001-2002, the Democratic Party took in $200 Million and the Republicans $421 Million.
7. The failure of FECA to stem the tsunami of money in elections led Congress to try again, and in 2002 it passed the Bi-Partisan Campaign Reform Act (BCRA), also known as the McCain-Feingold Act—the seventh and until now final stage of the effort to regulate campaign finance in the United States. The main innovation of BRCA was to prohibit unlimited soft money contributions by corporations and unions. And it was this provision that was held to be unconstitutional by the Supreme Court in the now infamous case of Citizens United v. FEC.
The core of the Citizens United ruling was Justice Anthony Kennedy's argument that "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." For Kennedy, "The censorship we now confront is vast in its reach." What he means is that the law bans all those corporations—including large multinationals and also small mom and pop stores and even non-profit corporations—from expressing their views about political candidates for either 30 or 60 days leading up to an election.
In Kennedy's telling, corporations are part of the country and, what is more, an important part of the country. The Government has “muffle[d] the voices that best represent the most significant segments of the economy." Here Kennedy channels Felix Frankfurter, who in the 1941 case of U.S. v.s. Congress of Industrial Organizations, wrote:
To say that labor unions as such have nothing of value to contribute to that process and no vital or legitimate interest in it is to ignore the obvious facts of political and economic life and of their increasing interrelationship in modern society.
U.S. v. C.I.O. dealt with the anti-Union Smith Act, which forbade unions and corporations from using treasury funds to pay for politicking. In this regard, the Smith Act was very much like 2002 Bipartisan Campaign Reform Act. While the majority of the Court refused to consider the Constitutional Question and decided the case on narrow grounds, Frankfurter did. In his telling, the Court must take seriously the evil that Congress sought to address: namely, the corruption of elections and federal officials by the expenditure of large masses of aggregated wealth. And yet, Frankfurter saw that "the claimed evil is not one unmixed with good." The expression of corporate or union speech in elections is, he writes, a good thing! "The expression of bloc sentiment has always been an integral part of our democratic and legislative processes." Replace "Labor unions" with "corporations." That is what Kennedy did.