Over at the Volokh Conspiracy, David E. Bernstein argues that Justice Stephen Breyer’s dissent in the Campaign Finance Case (McCutcheon v. Federal Elections Commission) is dangerous. He writes, rightly, that progressives have historically been uneasy with the First Amendment since strong rights are anti-democratic and exert a conservative and limiting impulse on democratic self-government and progressive programs. Thus free speech interferes with hate crimes legislation and stands in the way of attempts to limit offensive speech. And, most recently, free speech has proven the main impediment to regulate the insane amounts of money that are corrupting the political system.
Bernstein asks: “But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?” His rhetorical answer is that the liberal willingness to limit free speech evident in Justice Breyer’s dissent is dangerous:
The danger of this argument is that analogous reasoning could be used to censor major media corporations such as the New York Times, Hollywood, and so on, to wit: ”When Hollywood spends billions of dollars each year advancing a liberal agenda, the general public will not be heard. Instead of a free marketplace of ideas, we get a marketplace in which major Hollywood moguls have hundreds of thousands of times the ‘speech power’ of the average American.” And given that almost everyone deems it appropriate to regulate the economic marketplace to counter inefficiencies and unfairness, why should the much-less-efficient (because it’s much more costly for an individual to make an error in his economic life than to have a mistaken ideology) marketplace of ideas be exempt from harsh regulation? In short, once one adopts the Progressive view of freedom of speech as only going so far as to protect the public interest in a well-functioning marketplace of ideas, there is no obvious reason to limit reduced scrutiny of government “public interest” regulation of speech to campaign finance regulations. Nor is it obvious why the Court should give strict scrutiny to speech restrictions that don’t directly affect the marketplace of ideas, instead of just using a malleable test balancing “speech interests” versus other interests.
It is of course right to worry about placing limits on speech, especially speech that is so clearly political. That is why Justice Robert’s plurality opinion has such straightforward appeal:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. … If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.
What this means is that as long as campaign finance reform is viewed according to the lens of free speech, those who labor to protect our political system from the corrupting influence of excessive amounts of money will tread a treacherous path. They must, as Justice Breyer does at times in his dissent, argue for a version of free speech that is instrumental, one that is limited by its assumed purpose. Here is Breyer:
Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives.
Breyer, like too many of those who would support campaign finance reform, insists on fighting the battle over the meaning of free speech. The problem is that such arguments must speak about limiting speech on rational grounds or suggest that speech is designed to make government better. This raises the specter of the government deciding when speech does and when it does not improve democracy. Some may welcome judges making such difficult judgments—it may be what wise judges actually should do. But having judges decide when speech favors democracy would subject all sorts of offensive or radical speech to the test of whether it was directed to secure government action and whether it invigorated the marketplace of ideas.
The problems with the free speech approach to campaign finance reform have led Lawrence Lessig and Zephyr Teachout to seek a different path. Thus it is worth looking at the responses both of them penned to the McCutcheon decision.
Lessig, writing in the Daily Beast, argues that advocates of reform need to stop talking about free speech and instead focus on corruption:
The only way for the government to win, in other words, was to convince the Court that while corruption certainly includes quid pro quos, it need not be limited to quid pro quos. The roots of that argument were handed to the government from an unlikely source: the Framers of our Constitution. Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution to try to map how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.
Teachout, writing in the Washington Post, argues that we need to stop trying to ban money in our current system of campaign laws and, instead, create a new system, one modeled on examples in Maine, Connecticut, Arizona, Massachusetts, North Carolina, New Mexico, New Jersey, Hawaii and West Virginia, which have all experimented with publicly funded elections:
But the legislative branch has to take some responsibility. Relying on bans is akin to continually passing seat-belt laws that keep getting struck down while never building safe cars. We should take this McCutcheon moment to build a better democracy. The plans are there. Rep. John Sarbanes (D-Md.) has proposed something that would do more than fix flaws. H.R. 20, which he introduced in February, is designed around a belief that federal political campaigns should be directly funded by millions of passionate, but not wealthy, supporters. A proposal in New York would do a similar thing at the state level…. They have learned that they are most effective when every office’s election is publicly funded, so that candidates learn how to raise money by going to the people, and that it is better to give a public match only to in-state individuals and not to PACs or out-of-state donors. Big lobbyists don’t like this because they are used to getting meetings with candidates to whom their clients give money. We’ve also learned that more women and minorities run for office with a public-funding system.
The campaign finance decisions are a disaster for our democracy and are preventing attempts to limit the truly corrosive impact of money throughout our political system. But it is also the case that the decisions are principled when viewed within the rubric of our free speech jurisprudence. Instead of limiting the amount of money in an inevitably corrupt system, it is time to change the system itself. Lessig and Teachout are leading the charge. Their op-eds are your weekend reads. In addition, you can revisit my comments on Teachout’s talk at the Hannah Arendt Center last year, here. And you can watch a recording of Teachout’s speech here.
What is the essence of corruption? This is a question raised by the recent Supreme Court jurisprudence around Citizens United v. FEC. For Justice Kennedy and the Court has concluded, as a matter of law, that only quid pro quo corruption is corruption. An out and out bribe is corrupting, but throwing a congressman a $100,000 party or treating them to fancy meals and trendy restaurants, that is just exercising the right to freely speak with one's elected representatives. That such lavish expenditures come with expectations is, the Court insists, improvable and simply part and parcel of our democratic system.
In Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It, Lawrence Lessig explores fully the impact of such "soft" corruption. He writes that the enemy we face today is not a Hitler or even the good Germans who would enable a Hitler. "Our enemy," Lessig writes, "is the good Germans (us) who would enable a harm infinitely less profound, yet economically and politically catastrophic nonetheless. A harm caused by a kind of corruption. But not the corruption engineered by evil souls. Indeed, strange as this might sound, a corruption crafted by good souls. By decent men. And women." Such a crime, he insists, is banal, but "not the banal in the now-overused sense of Hannah Arendt's The Banality of Evil—of ordinary people enabling unmatched evil (Hitler's Germany). Our banality is one step more, well, banal."
Lessig is right to worry that Arendt's phrase is overused, but what is more banal in the banality he so penetratingly describes in his book? In any case, his book better describes the kind of endemic corruption that infects our political system than any other. It should be read.
It is also important to remember that real corruption still exists in our world. It may be more a rarity at a time when one can accomplish so much corruption through legal means, but examples of bold and brazen corruption remain.
Lance Armstrong's web of corruption that silenced and intimidated dozens of his colleagues for over a decade is one example of how corruption can succeed, against all odds, but only for a time. Rumors of Armstrong's drug use floated around for a decade, and yet he still denies it. It took years for the web of deceit to break. As the NY Daily News wrote in an excellent review of the scandal:
The Armstrong myth was so lucrative that suppressing the truth came to require an endless behind-the-scenes campaign to bully and intimidate people into silence. Some of it bordered on gangsterism. Some of it was dressed up in the respectable wardrobe of elite law firms. But mostly it was just hot air - a fact that by 2010 had become clear enough to Floyd Landis that he stepped up and burst the bubble, blowing the whistle on the whole big fraud.
We tend to ignore corruption because it seems so inconceivable in our age of transparency. Corruption requires that the truth be kept hidden. This is extremely difficult and possible only through force and violence and even terror. But eventually, the truth comes out. As Hannah Arendt wrote in another context, "holes of oblivion do not exist." Eventually, the truth will emerge, no matter how many interests and how much money and violence is spent in the futile effort to prevent that from happening.
What brings to mind these brief reflections on the continued efficacy of corruption as well as its eventual failure is an article recently published in The Nation on the Hershey Trust. The author of the story is Ric Fouad, who is also a member of the Arendt Center's Board of Advisors. He is a graduate of the Milton Hershey School and together with a handful of other activists has been fighting a lonely battle against what he sees as the corruption of the Hershey Trust's Board, a fight that for him is inspired by Hannah Arendt's insistence on both truth, courage, and public action.
A little background. Milton Hershey was not just a brilliant chocolatier who had a radical vision of making chocolate—previously marketed only to the wealthy—available to the masses. He was also profoundly philanthropic. Unable to have children, Hershey left his entire personal fortune to the Hershey Trust, whose mission was to administer The Milton Hershey School, a school that Hershey founded to help and educate orphaned boys—the school is now coed and serves children with living parents. That fortune is now worth nearly $8 billion.
By his own account, Milton Hershey's life work would be to help orphaned children, whose plight touched him deeply. Hershey wanted his school to bring orphans into a revolutionary new kind of school, free from industrial buildings common to orphanages. The children were to live in beautiful homes in a bucolic paradise on 12,000 acres of land. They were to work on farms to learn character and attend a school that includes a vocational curriculum as well and have great teachers. It had all the potential to be an extraordinary facility set in truly magnificent settings.
So what is not to like? Well, for one thing, the Hershey Trust has been under investigation for six years, with no resolution and amidst plenty of accusations and charges about misspent funds and broken trust. The bucolic community-wide children's home was telescoped into a crowded centralized campus; the farms were all closed; the vocational program barely survives; and the poorest children, wards of the court, and foster care children came to be rejected in favor of what the administrators deemed a "better" class of child. Local developers made tens of millions in the process.
Tasked with administering the Milton Hershey School, the Trust's incredible resources enabled it to do much else besides. This could be an amazing opportunity to do good. It could also and become a magnet for powerful and connected people who finagled their ways onto the Hershey Trust board in order to access and control the vast wealth the Hershey Trust possessed. And that is what the article in The Nation, as well as numerous investigative articles here, here, and here, in The Philadelphia Inquirer, have alleged. You can also watch Ric Fouad's Harvard Law School lecture "Hershey's Broken Trust" here.
In Republic, Lost, Lessig writes:
The great threat to our republic today comes not from the hidden bribery of the Gilded Age, when cash was secreted among members of Congress to buy privilege and secure wealth. The great threat today is in plain sight. It is the economy of influence transparent to all, which has normalized a process that draws our democracy away from the will of the people. A process that distorts our democracy from ends sought by both the Left and the Right: For the single most salient feature of the government that we have evolved is that it discriminates against all sides to favor itself.
As true as that is about government, it is also true for cycling legends and political clubs. When corruption of all kinds pervades institutions throughout our society, it is only natural that cynicism abounds and we lose faith in the process of government as well as in the integrity of business. It is time to take corruption seriously in this country, and not explain it away as something that happens elsewhere in less civilized and less democratic countries.
You can read an excerpt of Lessig's Republic, Lost... here, at Amazon.com, where you can also buy his book.
Does the President Matter? Consider this quotation from Jurek Martin in today's Financial times:
Barack Obama and Mitt Romney may speak, sometimes even to real audiences but more often to fat cat fundraisers, but their words fall on deaf ears if not empty wallets. Lots of people speak for them, in the strange languages known to advertising and political consultants, but what they say is ephemeral and leaves, beyond the daily news fix, “not a wrack behind”, as Shakespeare put it. Yet they are fueled by piles of money, which means they speak more and more – to lesser and lesser effect.
Lawrence Lessig is of course right to worry about the corrupting influence of money on our elections. But the greatest effect of all this money is the drowning out of meaningful speech in a throbbing sea of money-driven sound bites, consultant-approved platitudes, and poll-tested attacks. Everyone must stay on message, which means that no one says or does anything. In such a system, how can the President matter or make a difference in the world?
If you have an answer, enter our 2012 Thinking Challenge by answering the question: "How might the President Matter in the 21st Century?"
Learn more here.
This weekend's suggested read is an interview with Lawrence Lessig, author of Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It. For years Lessig has advocated for the freedom of information and helped to found and establish the Creative Commons. Recently, Lessig has set his sites on freeing politics from corruption, and his book has been claimed as one of the intellectual foundations of the Occupy Wall Street movement. In this vibrant conversation, Lessig discusses finance reform, the Occupy Wall Street rallies, and how to rehabilitate the public sphere.
Lessig’s recent work addresses how the corruption pervasive in modern institutions is corrosive to public confidence and hence the arena of politics. What he terms “invidious, systemic wrongs” has led to a total loss of authentic civic trust: “the financial collapse is the most astonishing of these examples, “ he states, “not so much because of what happened before 2008, but because of what happened after.” As bad as the crash was, the bailout of bankers was an unparalleled giveaway, a transfer of money from taxpayers to the wealthiest denizens of the financial world.
Lessig encourages the current Occupy Wall Street movement to tap into this exasperation, focusing not on wealth, but fraudulence: “if [OWS] can say, whether or not you believe in capitalism, nobody believes in crony capitalism, and crony capitalism is what we’ve got, it would stand a greater chance of success.” Lessig’s emphasis on corruption is a reminder that it is the perversion of the facts and the rewarding of failure at the highest levels that that is responsible for the weakened state of our political world.
A provocative thinker, Lessig proposes several solutions to restore the political space he sees as dangerously thinned in the era of C-SPAN. These include the establishment of constitutional conventions—‘citizen juries’ where people could come together to debate the issues of the hour. “It would demonstrate something that I think people forget,” Lessig remarks to David Johnson of the Boston Review, “which is that politics is the rare sport where the amateur is better than the professional.”
Click here to read the interview.