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Democracy of, by, and for the people … with money

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Our best hope, both as a state and as a nation, is to continue the push for a constitutional amendment declaring once and for all that money is not speech.

Almost four years on from Citizens United v. Federal Election Commission, and following the most expensive election cycle in our nation’s history, a case argued Tuesday before the U.S. Supreme Court has the potential to further monetize our democracy.

McCutcheon v. Federal Election Commission addresses the issue of direct contributions to candidates and parties. Specifically, Shaun McCutcheon and the Republican National Committee are petitioning the court to strike down aggregate contribution limits – the total amount a person can donate to candidates and party committees during an election. If aggregate contribution limits are lifted, a donor could invest as much as $3.6 million in a two-year cycle – enough to buy the attention of every federally elected official, including the president. Should the Supreme Court strike down these limits, Minnesota’s values of small, clean elections will not be enough to protect us from the overwhelming power and money of special interests.

The case is especially relevant here in Minnesota. Just this year our state Legislature raised candidate contribution limits, allowing even more money into Minnesota’s election system. Ostensibly this move helps candidates to “compete” in the media against the large amounts of special interest money introduced by Citizens United; but their motives would seem more sincere if they had not also failed to pass measures calling on Congress to pass an amendment overturning Citizens United, and increasing public disclosure of monies spent in elections. This strategy — treating the symptom without addressing the cause — calls into question their commitment to getting money out of politics.

Buckley v. Valeo

So how could the Supreme Court decide to remove aggregate contribution limits? Such a decision would fly in the face of decades of judicial precedent. In the case Buckley v. Valeo – in the wake of the Watergate scandal – the Supreme Court upheld direct contribution limits, stating that government had an interest in preventing “corruption, and the appearance of corruption.” Since then, the Supreme Court has consistently relied upon the Buckley ruling. While Citizens United allowed unlimited private expenditures, treating money as “speech,” the court specifically upheld limits on contributions, citing Buckley as the framework by which the constitutionality of contribution limits should be interpreted.

But despite this reassuring position, the Supreme Court could now decide that the right to free “speech” is more important than preventing corruption. The problem with this logic is that most of us do not have access to the kind of “speech” they mean. For example, in the last presidential election nearly 60 percent of Super-PAC funding came from just 159 donors, each contributing at least $1 million. More than 93 percent of the money Super-PACs raised came in contributions of at least $10,000 — from just 3,318 donors, or the equivalent of 0.0011 percent of the U.S. population.

Unless you are a part of this .0011 percent or have an extra $10,000 to spend on an election, the repercussions of this ruling could be disastrous. There is no need for the Supreme Court to add to the legacy of Citizens United by removing limits on aggregate contributions. In the court’s own words, lifting limits would have the effect of inviting corruption.

Contribution limits don’t threaten participation

I hope the court will find that this is no ‘free-speech’ issue. No campaign finance law regulates what an individual can say about a candidate or issue, and nobody’s participation in elections or campaigns is threatened by contribution limits. In fact as a result of the Citizens United ruling, citizen participation is increasingly threatened and devalued as campaigns increasingly rely on money. McCutcheon could further draw power away from the voices of citizens into the wallets of an elite few, making voters far less influential than a handful of elite donors.

We need to ask ourselves some important questions. With the Legislature’s move to increase the cost of Minnesota elections and its neglect in addressing the root of the problem, can we rely on our elected officials to find the will to change it? And if the Supreme Court removes the limits to direct candidate contributions, what defense do we have left?

Our best hope, both as a state and as a nation, is to continue the push for a constitutional amendment declaring once and for all that money is not speech, and erecting the most permanent safeguard against the corruption of our democracy.

Jeremy Schroeder is the executive director of Common Cause Minnesota.

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Comments (13)

  1. Submitted by Dennis Tester on 10/09/2013 - 09:40 am.

    The problem with Buckley v. Valeo

    is that the Court allowed their concern for the potential for corruption to over-ride their defense of the 1st Amendment.

    But it seems that the people who support and defend Buckley, because of their concern for corrupt elections, are the same people who fight tooth and nail against any attempts to make voters prove who they are – a more likely point in the election process where cheating can occur.

    Bottom line, unless you can show me that the government has a right and responsibility to limit the amount of time, money and human resources that any news organization, including this one, can spend during an election cycle, all laws that attempt to limit political speech should be ruled unconstitutional.

    • Submitted by Eric Paul Jacobsen on 10/19/2013 - 06:06 pm.

      There is a difference.

      There is a difference between news and paid ads. News exists because subscribers pay so that they themselves can read the content. Ads exist because sponsors pay for others to see them. Basically, if you’re reading something that you paid to see, that’s news. If you’re reading something that somebody else paid for you to see, that’s an ad.

      I would favor the mandatory full disclosure of all sponsors of widely circulated paid ads, to every consumer who has to see them. I would not require full disclosure of all authors of news articles, but I would not myself subscribe to a newspaper whose writers were all anonymous.

      The difference between money and speech is even more obvious. Money is an amplifier of speech, not speech itself. When a few voices can use the power of money to make themselves speak so loudly that most other voices become impossible to hear, freedom of speech exists only for those few, not for the many.

  2. Submitted by Michael Friedman on 10/09/2013 - 11:34 am.

    Freedom to speak but no freedom to hear

    The easy and creative solution is not to limit the amount a person can give but the amount a candidate can receive from all combined sources. If a donation is akin to free speech, receiving a donation is metaphorically equivalent to listening, and there’s no constitutionally guaranteed right to listen.

    Combine such a rule with a disclosure obligation and one can see if a candidate received donations from 2 Koch brothers or 100,000 AFSCME workers, but neither total would be unlimited. Having a supply-side approach to campaign dollars can allow consideration of lowering the caps over time, thereby maximizing the time elected officials can govern without having to beg for money.

  3. Submitted by Eric Paul Jacobsen on 10/09/2013 - 12:47 pm.

    Yes, Amend the Constitution: Money Is Not Speech

    Money is not speech, but a means by which the opinions of a few may be amplified to drown out the opinions of the many. Particularly when money is contributed directly to a politician, it is an abuse of the power of money to undermine democracy. Speech has nothing to do with it.

    The Citizens United v. FEC decision of 2010 was bad, but the Buckley v. Valeo decision of 1976 wasn’t much better. Although this decision allowed limits on campaign contributions, the text of the decision implicitly assumed that campaign spending was a form of speech, rather than what it is: the replacement of the power of evidence, reason, and argument with the power of money.

    We can and should declare that money is not speech. We can and should restrict the power of money to corrupt the democratic process without diminishing anybody’s the freedom of speech. We can and should limit the money that any individual can contribute to a political campaign, by Constitutional amendment if necessary. The following is my own program for campaign finance reform.

    1. I would allow each candidate running for public office to receive no more than $5 per contributor.

    2. I would also require every major broadcaster to devote 10 hours of free airtime to multi-partisan debates in each election cycle, moderated by the League of Women Voters or a similarly respected non-partisan group.

    3. Full disclosure of funding for all paid speech of every kind, political or not, would include a “Surgeon General’s warning” on every paid advertisement, indicating the number of people who actually endorsed the ad with their own signatures. A full list of these signatures would be available to any citizen upon request, provided by the broadcaster or newspaper publisher who ran the ad.

    4. The penalty for a violation of these rules would be (1) permanent banishment from public office, (2) permanent revocation of a broadcasting license, or (3) a fee equal to 100 times the cost of the ad, respectively.

    I don’t seriously expect my proposals to be taken up in this form, but this is the position from which I would prefer to start negotiating with the money power.

  4. Submitted by jody rooney on 10/09/2013 - 03:04 pm.

    I like the “freedom to listen argument”

    Certainly under the current system people contribute or buy listening rights. I think limiting the amount of money accepted – even from your own pocket is a good way to go.

  5. Submitted by Tom Anderson on 10/09/2013 - 07:29 pm.

    Name names

    If influence is indeed being purchased, please provide the names of those officeholders who have been bribed. Otherwise, everyone who makes the accusation is just blowing smoke. And money doesn’t buy elections as has been exhibited many times over the last several elections.

    One solution to the “problem” is obvious–term limits. Investing millions of dollars for a “vote” that only serves one or two (present) terms reduces the value of each “vote”.

    • Submitted by Matt Haas on 10/09/2013 - 11:27 pm.

      Oh

      So that’s why election spending has been going down at such a stunning rate for our only term limited national office. May want to rethink that idea, the only thing that changes is the timeframe to get your ideology enacted. The result will be massively higher spending in an attempt to secure one party rule for as long as is possible.

      • Submitted by Tom Anderson on 10/10/2013 - 09:04 pm.

        Excluding the President

        Who can rule by executive order, limiting each individual of group of say, 437 people, to four years or so might well reduce the influence of money.

        Again, name names of the corrupt.

        • Submitted by Matt Haas on 10/10/2013 - 10:49 pm.

          Take your pick

          Of any of our home state delegation, both sides of the aisle, who vote to give Medtronic its tax gift. Being bought and paid for does not equal corruption. Influence peddling is what we are describing, it should not happen through campaign finance. Personally, I’d make all public financing of all elections law (would take the constitutional amendment of course) set a limit for all expenditures and make a candidate prove viability before becoming eligible for funds. Also I would eliminate entirely the paid lobbying industry. You want a rep’s ear, get in line behind everyone else. Enact hard penalities for corruption for all parties involved including the benefactor. None of it will ever happen, mind you, but it’s what has to happen if you really want our government to function as intended.

    • Submitted by Todd Hintz on 10/11/2013 - 04:22 pm.

      Term Limits

      We have term limits already. It’s called “voting.”

  6. Submitted by Matt Haas on 10/09/2013 - 11:22 pm.

    why sure

    Let’s ensure that the critical economic, intelligence, and defense concerns of our immensely diverse and complex nation are addressed by those with the least experience in those matters possible. Term limits sound wonderful, especially when put in terms of getting rid of folks who hold views opposite from your own. There is no guarantee the next elected official will be any more to your liking. Term limits already exist, they are called elections, if you feel your voice is not being heard, perhaps you might re read the article on which you comment.

  7. Submitted by Tom Anderson on 10/10/2013 - 09:14 pm.

    Least experience

    Nobody said that another 70 year old can’t run for a given office. Perhaps the country has noticed that all the years of experience really seem to be helping. Given the large number of Representatives and Senators over the age of 65 (although some have been dying lately) you’d think that Congress would be running like a Swiss watch. Since seniority determines who gets what plum job, term limits mean that even a first termer can do more than keep quiet and watch. Term limits are not apt to change which party controls a given seat, but it changes the seniority system every two years and there is the possibility that Congress won’t keep doing what it has always done. Elections as term limits replace people at a less than a 90% rate. Why settle for Weiner, Bachmann, Jackson Jr., and the like?

    • Submitted by Matt Haas on 10/10/2013 - 10:38 pm.

      except

      The folks you’ve named are the exact opposite of the point you were trying to make. All under 65, all with little seniority, and all out of, or soon to be out of office. Elections would have eliminated the first two had they not left of their own accord, and Shelly would likely have joined them this go round. Better choices might have been Collin Peterson, ( a rather bi partisan legislator, whom I might expect you’d champion), or any number of coastal Democrats or Southern Republicans. Problem is their constituents keep electing them, who are you to tell someone else they cannot elect the representation of their choosing, no matter how odious you may find it. Heavens, I am starting to sound positively conservative, unlike the current crop of actual conservatives.

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