Tag: citizens united

Populism: Good and Bad

Today, Politico Arena asks:

What is it about the word “populist”? (these days)

My response:

“Populist” (or “populism”), in its American usage, invokes the “common man,” yet the idea’s origins – in ”the people” or “the polis” – can be traced to ancient Greek democracy and, in particular, to political demagoguery.  Both Plato and Aristotle had reservations about democracy as a system of government precisely because it was susceptible to corruption by populist appeals to superstition and error.  In America, populism has had a long and varied history, but it is most often associated with the Populist Party that was formed in 1891 and, in particular, with the fiery speeches of the Democratic Party candidate for president in 1896 and 1900, William Jennings Bryan, and his famous ”cross of gold” speech at the 1896 Democratic National Convention.

Thus, in a fundamental way, populism stands opposed to elitism, yet it’s more complicated than that.  On one hand, the populism of the late 19th and early 20th centuries contrasted with the Progressivism of the era, which held that society should be organized and run by “professionals” trained at the best schools.  (Thus, the emergence of political “science,” as distinct from the older tradition of political philosophy.)  But on the other hand, Progressives themselves purported to speak for “the people,” even if in practice they were often contemptuous of the people’s capacity to govern themselves, susceptible as the people were to the appeals of demagogues.

At the end of the day, therefore, populism is a double-edged sword.  Used pejoratively, it stands for the idea that politicians, to obtain or preserve political power, will appeal to base popular sentiments or mistaken (often economic or legal) ideas.  A good example is Obama’s reaction last week to the Supreme Court’s Citizens United decision, rooted in the First Amendment’s guarantee of political speech:  He called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”  There is an element of truth to that sentiment, of course, because the system of government that has evolved in America under the influence of Progressive “professionals” has endowed those professionals (read: the governing class, in all its reaches) with unprecedented power over “the people,” who often feel powerless as a result.  But demagogic appeals like that or like others we’ve heard lately from Obama will only exacerbate that problem.  By contrast, a “populist” appeal that seeks to return power to people (N.B.: I did not say, as in the ’60s, “power to the people”) – power to run their own lives, free from unwarranted government regulation or dependency – is a side of the idea we hear too seldom.  Yet it’s what our founding documents are about.  They established not simply popular government but limited popular government – ensuring the right of the people to govern themselves, not mainly through government but individually or in voluntary association with others.  It is that liberty that Progressive elitists who “knew better” – the folks in Cambridge who voted 84 to 15 against Scott Brown – have gradually extinguished.

If You Prick a Corporation, Does It Not Bleed?

Well, no, because as my liberal friends all seem to be indignantly announcing in the aftermath of the Citizens United ruling, corporations aren’t really people! They’re creatures of statute, and “corporate personhood” is just a convenient legal fiction.  Which is fair enough, but also seems to miss the point rather spectacularly. As a practical matter, it is hard to imagine any constitutional liberty that could not be reduced to a hollow joke if we refused to count as an infringement any regulation that nominally targeted only the corporate mechanism for coordinating its exercise.

Having dispensed with the repellent doctrine of corporate personhood, we can happily declare that journalists enjoy full freedom of the press … as long as they don’t plan on using the resources of the New York Times Company or Random House or Comcast, which as mere legal fictions can be barred from using their property to circulate unpatriotic ideas. You’re free to practice your religion without interference — but if it’s an unpopular one, well, let’s hope you don’t expect to send your kids to a religious school or build a church or something, because those tend to involve incorporating. A woman’s right to choose is sacrosanct, but since  clinics and hospitals are mere corporations with no such protection, she’d better hope she knows a doctor who makes house calls. Fill in your own scenarios, it’s easy.

The irony here is that it’s libertarians who are often accused of a myopic obsession with formal liberties rather than their real-world value to people — “the law in its majestic equality” and all that. But this, surely, would be the height of empty formalism — a right to swing your fist that stops at the air.

I think people are obsessing over this because we often think of rights as flowing, at least in part, from respect for our intrinsic human dignity, and it seems equal parts farcical and offensive to suggest that institutions like Exxon and Nike are in the same moral category. As a purely ethical matter, of course corporations as such don’t have rights. As a practical matter, though, rights that wither at the corporate touch won’t do you a whole lot of good in the 21st century.

Speech For Me, But Not for Thee

Politico Arena asked a second question today:

Will Citizens United alter American campaigns and if so, how?

My response:

Will Citizens United alter American campaigns?  Probably – and for the good.  Corporations, unions, and their officers will no longer fear criminal prosecution if they run afoul of inscrutable prohibitions on independent political campaign expenditures that not even FEC commissioners understand.  There will be more political speech as a result, and more perspectives on the issues of the day.  That speech will come from all sides – after all, George Soros and Rupert Murdoch are not likely to be saying the same things, and with restraints prior to elections now lifted, differences like those will doubtless be reflected in great variety in the speech that comes from the rest of corporate and union America.  And most important, the core function of the First Amendment, the protection of political speech, has been restored in important, if not in all, respects.
But other, more sinister, results may also flow from yesterday’s decision.  President Obama’s new populism surfaced immediately:  He called the decision “a major victory for big oil, Wall Street banks, health insurance companies,” and other “special interests.”  And The New York Times, in an all but unhinged editorial, pronounced that “with a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century.”  Claiming that the decision “strikes at the heart of democracy,” the Times tells us that ”Congress must act immediately to limit the damage of this radical decision.”  How?  By enacting “a law requiring publicly traded corporations to get the approval of their shareholders before spending on political campaigns.”  So much for corporate internal-governance rights.  And get this:  “Congress should repair the presidential public finance system and create another one for Congressional elections to help ordinary Americans contribute to campaigns.”  As if ordinary Americans could not contribute to campaigns without such congressional assistance.  Concerning the “presidential public finance system,” it’s been in place for years – you can check off a contribution when you pay your taxes.  That fewer and fewer Americans are choosing to contribute through this “public” financing system speaks volumes, of course.  And it tells us too why Citizens United has brought forth such rage among the decision’s opponents:  It’s a major setback to their larger agenda.  You see, the complex federal campaign finance system that has grown steadily – until yesterday – was never meant to be the final word.  It was only a way station to public campaign financing.  Once there, at that ultimate end, political speech in the form of campaign contributions would rest safely in incorruptible public hands – save, of course, for those contributions that take the form of editorials coming from such corporate giants as The New York Times, which the First Amendment would continue to protect.  Now there is a vision that warms the soul of the Great Gray Lady.

The Government Should Have Less Power to Tax and Spend, Not More Power to Regulate Speech

Yesterday, The Hill asked various pundits and politicos to respond to the Supreme Court’s Citizens United ruling.  The Big Question (as their periodic feature is called) was, “Will corporate money change campaigns?”  You can read my response here.

Today, that same newspaper invited me to blog some further thoughts on the Citizens United decision.  Here’s what I wrote:

Critics of yesterday’s decision say the sky of American democracy is falling.  Supporters—including myself—say it’s a great day for the republic and a vindication of the freedom of speech.  How can this be?  Are nonprofit think tanks and advocacy groups like my own Cato Institute, the ACLU, the NRA, and many other odd bedfellows who supported Citizens United all in the pockets of Wall Street, Big Oil, insurance companies, and others that President Obama assails as corrupting our politics?  Leaving aside the issue of why the politician who got more of his campaign funding from Goldman Sachs than any other source would be going after the very industries that most support him, the asymmetry in this debate rests on the myth that money is an evil in the political system, and that therefore the American people want so-called campaign finance reform to “clean up” government.

Money is no more an evil in politics than it is in life generally.  Some people may not like mud-slinging attack ads, but some people also don’t like SUVs, the Super Bowl, the Jay Leno Show, and many other things that people spend money on—including donations to Cato, the ACLU, the NRA, etc.  The problem with money in politics isn’t the money, but rather the politics.  So long as the government is powerful enough to dole out tax breaks, subsidies, stimulus funds, regulations, earmarks, and a whole host of other goodies (and baddies), those that stand to benefit (and lose) will spend money on the political process.  The way to get rid of this behavior and spending—which is constitutionally protected in a whole host of ways: freedom of speech, freedom of association, the right to petition the government for redress of grievances, etc.—is to reduce the government’s power to affect so many people’s lives and transform economic incentives for businesses big and small.  Reduce the size of government and K Street will melt away.

Finally, as my colleague Roger Pilon points out, 26 states have minimal campaign finance laws, with no evidence that those states have more corruption—or a more unequal “political playing field”—than states that strictly regulate.  And that’s because the real reason we have campaign finance regulations—the dirty little secret behind the whole convoluted regime—is that it’s an incumbency protection racket.  From the so-called “millionaire’s amendment” that the Supreme Court struck down in 2008 to the limits on corporate and union advocacy that the Court struck down yesterday, McCain-Feingold and all other campaign finance legislation—passed by self-interested politicians—is designed to make it harder for challengers.  After-all, incumbents have the benefit of name recognition, taxpayer-funded travel to and around their home districts and states, taxpayer-funded campaign literature disguised as informational flyers touting all the great things a congressman is doing, and a host of other advantages.

The First Amendment is not a “loophole” for big business and those of us who want freer speech—without bureaucrats deciding who gets to speak when and how much—are not corporate shills.  Free speech is the very foundation of our democracy, and we are stronger today for the Citizens United decision.

Citizens United and Corporate Money in Politics

As several of my colleagues noted yesterday, the Supreme Court handed down its landmark decision in Citizens United v. FEC. While I regarded the decision as a victory for free speech, a large number of folks on the left — many of whom support free speech in other contexts — were aghast at the decision, arguing that it would vastly enhance the influence of large corporations in the political process.

Part of my disagreement with these guys is that I’m just a free speech zealot. The First Amendment says “Congress shall make no law … abridging the freedom of speech,” and I don’t see how that language can be squared with a statute that limits the distribution of a political documentary. The best you can say, I think, is that limiting corporate influence is a “compelling state interest” sufficient to overcome the First Amendment’s ban on speech abridgment, but that’s just another way of saying that you don’t care about free speech very much.

Second, I think it’s important to remember that “corporations” encompass much more than large, for-profit businesses. They also include a wide variety of non-profit and advocacy groups, including the ACLU, the NRA, and NARAL, that are, by any reasonable definition, grassroots organizations advocating the views of large numbers of voters. Indeed, as the ACLU pointed out in its amicus brief, the Bipartisan Campaign Reform Act (BCRA) prohibited the ACLU from running ads criticizing members of Congress who voted for the awful FISA Amendments Act of 2008. Even if you think it’s appropriate for Congress to regulate the speech of Exxon-Mobil and Pfizer, I think it’s awfully hard to square the First Amendment with a law that limits the ability of NARAL or the NRA to advocate for its members’ views.

But more fundamentally, I don’t buy the idea that limiting corruption is a state interest sufficiently compelling to overcome the First Amendment interest in free speech. I think supporters of BCRA misunderstand how corporations wield influence and dramatically overestimate the power of television advertisements. It’s true, of course, that a corporation prepared to spend $1 million on ads criticizing a particular legislator will get that legislator’s attention. But there’s nothing unique about this. It can also get his attention by hiring a lobbying firm that employs a former staffer. It can get his attention by arranging $100,000 in bundled contributions from executives, clients, and friends of the company. It can get his attention by creating astroturf organizations. And there are probably lots of other mechanisms I haven’t thought of.

The key difference between independent expenditures and the other mechanisms is that independent expenditures are the most open and transparent. To run an effective “issue ad,” a corporation has to make an argument that is persuasive to voters. I don’t want to sugar coat the situation; sometimes independent expenditures finance ads that are sleazy and misleading. But given a choice between corporations spending their money on ads about how Senator Smith hates America or spending their money on K Street, I’ll take the ads, because at least voters still get the final decision.

Moreover, I think we’re moving toward a world in which traditional high-dollar advertising campaigns will become increasingly ineffective. One smart liberal compares the post-Citizens United world to a debate in which “you get 10 seconds to make your case. I’ll take an hour.” This description of the world had a certain plausibility when most people got their news from newspapers and television — media characterized by severe, technologically imposed bottlenecks. These bottlenecks meant that those willing to spend more money could get a significantly bigger soapbox.

This is a lot less true online where users have practically unlimited choices. The web is littered with lavishly funded corporate propaganda that gets a fraction of the traffic of grassroots blogs like Boing Boing. When people have lots of choices, they aren’t likely to stick around very long at a site that dishes up corporate talking points. So while deep pockets will always be an asset in politics, they won’t give 21st century corporations the huge advantages they gave to 20th century corporations.

So I’m not thrilled at the idea of Fortune 500 companies spending a ton of money on bogus “issue ads.” But I think the dangers of such ads are frequently exaggerated. I’m far more worried about preserving the right of organizations like the ACLU to spread their message. And I don’t see any plausible way to stop the former without seriously restricting the latter. So I’m glad to see the Supreme Court take the words of the First Amendment — “Congress shall make no law” — literally.

Secretary Clinton on Free Speech

Secretary of State Hillary Clinton gave a major speech on Internet freedom today. The text has been posted on the State Department web site, and Adam Thierer has a review of it up on the TechLiberationFront blog.

As a signal to other governments, it was a good speech. It placed the United States government on the side of freedom movements around the world and extolled how technology empowers them.

From a domestic perspective, it was nothing special. References to the liberating power of the Internet were carefully caveated with cautions about online dangers that could justify government intrusion on the Internet. Secretary Clinton was particularly equivocal about online anonymity.

The irony, of course, was provided by the breaking news of the day: the Supreme Court’s decision in Citizens United, discussed by my colleagues here, here, and here, as well as in this podcast. The case dealt with speech critical of Secretary Clinton produced by a corporation during her candidacy for the presidency. It reversed precedents allowing a ban on corporate and union speech about political candidates.

The Court said in Citizens United:

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.

The fact that speech issues from people organized as corporations or unions makes no difference.

In her speech, Secretary Clinton echoed similar themes. “Countries that censor news and information must recognize that from an economic standpoint, there is no distinction between censoring political speech and commercial speech.” Perhaps she was trying to distinguish between economic consequences of speech and other consequences, but later she said:

[C]ensorship should not be in any way accepted by any company from anywhere. And in America, American companies need to make a principled stand. This needs to be part of our national brand. I’m confident that consumers worldwide will reward companies that follow those principles.

The Citizens United case is the product of a company taking such a stand, though not in the way Secretary Clinton meant it.

Later in the day, the White House issued the following statement about the Citizens United free speech case:

With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington–while undermining the influence of average Americans who make small contributions to support their preferred candidates. That’s why I am instructing my Administration to get to work immediately with Congress on this issue. We are going to talk with bipartisan Congressional leaders to develop a forceful response to this decision. The public interest requires nothing less.

So much for free speech.