Tag: elections

Grigori Rasputin Bailout

Sending billions of federal taxpayer dollars to teachers and other public school employees is the bailout that just won’t die. It’s been sliced, shot up in a firefight between Democrats, and even had a battle with food stamps, but it just can’t be killed!

Now, let’s be clear: This is not some wonderful crusade all about helping “the children.” It is pure political evil, a naked ploy to appease teachers’ unions and other public school employees that Democrats need motivated for the mid-term elections. It has to be, because the data are crystal clear: We’ve been adding staff by the truckload for decades without improving achievement one bit. Since 1970 (see the charts below) public school employment has increased 10 times faster than enrollment, while test scores have stagnated.

But suppose there were some rational reason to believe that we need to keep staffing levels sky-high despite getting no value for it. Lots of teachers’ jobs could be saved without a bailout if unions would just accept pay concessions like millions of the Americans who fund their salaries. But all too often, they won’t.

Sadly, this is all just part of the one education race that Washington is always running, and it absolutely isn’t to the top. It is the incessant race to buy votes. And guess what? Despite its reputation even among some conservatives, the Obama administration, just like Congress, is running this race at record speeds.

The Principle behind Campaign Finance Regulation

Democratic House leaders apparently have reached a compromise that may bring the DISCLOSE Act to a vote. The National Rifle Association, a group that enjoys some support from House Democrats, objected to the bill’s disclosure provisions. DISCLOSE’s authors have now agreed to exempt “organizations that have more than 1 million members, have been in existence for more than 10 years, have members in all 50 states, and raise 15 percent or less of their funds from corporations.” The National Rifle Association qualifies for the exemption. But you knew that.

I wonder what principle of campaign finance regulation justifies this exemption? Earlier the authors of DISCLOSE said the American people deserve to know who is trying to influence elections. Now it would seem that voters only need information about relatively small, young, geographically-confined organizations that receive more than 15 percent of their money from corporations.

There is no principle at stake here. The NRA had enough support to stop the DISCLOSE Act. House leaders had to compromise by cutting the NRA a deal, a special exemption from the proposed law. The deal does show, if nothing else, that House Democrats are really worried about new money entering the fall campaign. They are willing to go a long way – even as far as helping the NRA – to make sure other speech funded by businesses and groups is not heard.

Finally, imagine you are a member of a group not exempted from DISCLOSE. You have been treated unequally by Congress.  The courts have said Congress can treat you unequally if they show that this exemption  for the NRA has a rational relationship to an important government purpose.  How does exempting older, bigger, more widespread groups with less than fifteen percent corporate funding help Americans cast an informed vote?  Put another way, if the NRA deserves an exemption, doesn’t everyone?

A Public Thumb on the Election Scales

When taxpayers underwrite the campaign expenses of candidates for public office, serious questions arise: Not least, why should taxpayers subsidize candidates or ideas they oppose? But when taxpayers subsidize only one side in a campaign, there should be outrage. Perhaps there was at the Supreme Court this morning, when the Court blocked an appalling opinion out of, not surprisingly, the oft-overturned Ninth Circuit.

In McComish v. Bennett the Goldwater Institute is challenging Arizona’s Clean Elections Act, under which “candidates who run with public campaign subsidies receive an almost dollar-for-dollar match each time a privately funded opponent raises money above a certain amount,” the Goldwater press release states, “and additional matches when independent expenditures are made against the subsidized candidate.”

The problem for proponents of this Act is that the Supreme Court has said more than once that “leveling the playing field” is a forbidden rationale for campaign finance regulations. Moreover, and more precisely, in 2008, in Davis v. FEC, the Court held that the so-called Millionaires Amendment to the McCain-Feingold campaign finance act of 2002 was unconstitutional. Under that amendment the contribution caps that would otherwise apply to congressional candidates were lifted if a candidate was running against a self-financed opponent – a “millionaire” who, under the First Amendment, could not be restricted in funding his own campaign. Again, leveling the playing field won’t do. (Note also that that amendment put a lie to the main rationale for campaign finance restrictions – to prohibit corruption or its appearance. The caps are needed to prevent the candidate from being corrupted, so the argument runs – unless he’s running against a millionaire, in which case he won’t be corrupted by the added contributions. Such are the lengths to which campaign finance regulators are prepared to go to justify their schemes.)

Writing for the majority in Davis, Justice Alito went to the heart of the matter: “It is a dangerous business for Congress to use the election laws to influence the voters’ choices.” That it is, and it’s not through election laws alone that Congress – or states, as here – tries to influence voters choices through the use of taxpayer dollars. Do we need any better example, on this primary election day around the country, than publicly-funded National Public Radio?

In January, U.S. District Court Judge Roslyn Silver found Arizona’s Act unconstitutional under the First Amendment. But the state appealed, and last month a three-judge panel of the Ninth Circuit issued an opinion stating that the damage to free speech was minimal. This morning the Supreme Court issued an order to enforce the District Court’s injunction against the use of matching funds. As reported by the Goldwater Institute, the order says the injunction will remain in effect until the Court rules on the underlying appeal of the Ninth Circuit decision. The injunction also would be lifted if the Supreme Court decides not to consider the formal appeal. This is one to watch.

Lawrence Lessig’s Constitutional Amendment

Lawrence Lessig has proposed a constitutional amendment in response to the U.S. Supreme Court’s decision in Citizens United.  It reads:

“Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.”

In Citizens United, the Court said that the First Amendment concerns speech rather than speakers. Congress has no power to discriminate against speakers; hence, a source of speech - people organized as a corporation - could not be prohibited from speaking (or funding speech).

Professor Lessig hopes to introduce a discrimination among speakers into the First Amendment. His proposed discrimination will not lose a popularity contest. He wishes to allow Congress to control the speech of non-citizens.  He follows two lines of argument in support of his amendment, one less rational than the other.

The less rational line of appeal to the reader is both implicit and predictable. The Chinese are invoked along with the Chamber of Commerce. A denial of xenophobic intent follows immediately, and “We the People” appear near the end. Carl Schmitt would recognize the rhetorical construction of “friend and enemy.” Rather cleverly, Lessig manages to equate the foreign devils with the internal demons of the liberal mind. Corporations (including the Sierra Club?) and the Chinese (or other foreigner) are on one side of political struggles while “We the People” are on the other.

Lessig’s more rational line of argument: “elections are private. It is we - citizens- who are to select who is to govern us. And it is completely appropriate for us to protect the debate we have about that selection by limiting disproportionate spending by non-citizens.” He later suggests the propriety of “protecting elections against undue influence by non-citizens.”

Notice Lessig moves from an widely-held premise “only citizens should select those who govern” to conclude “we should protect elections against the undue influence of non-citizens.” His idea of “dependence” relates his premise to his conclusion. Allowing spending by non-citizens would make voters dependent on them and thus preclude select of the our rulers by “us.”

What is missing here, oddly enough, is the citizens themselves. After all, the non-citizens do not simply give money to voters. They spend money to create and communicate political speech. Voters are the intermediaries between that speech and the selection of government officials. Citizens decide how much influence political speech of all kinds should have.  Lessig’s concern about undue influence seems to be a concern that voters will be fooled by internal or external foreigners to the detriment of our nation. But the Constitution says that citizens, whatever their failings, are the best filter of speech.

Lessig’s amendment would substitute the judgment of Congress for that of citizens at least in regard to the speech of non-citizens.  Congress would decide how much spending on speech is “due” and how much would lead to “undue influence” by non-citizens. A court would then be called upon to decide whether the limits chosen by Congress constitute a de facto ban on speech. This process of legislating and litigation would yield how much speech citizens are allowed to hear.

Keep in mind that not all the ideas of foreigners are inimical to the people of the United States. Liberals did not seem to mind the support Barack Obama received from cheering crowds in Berlin. Perhaps Americans should hear about the suffering caused abroad by trade protectionism. It is also true that the interests of foreigners are sometimes at odds with the interests of Americans. Who should decide which ideas espoused by foreigners are good for the nation and which inimical? Should Congress decide or citizens?

We might also wonder whether Lessig’s amendment would even apply to corporations. The corporation is a product of contracts among owners and others. These contracts provide for agents who run the corporation and decide many things including whether to fund political speech on behalf of the enterprise. All of this, contracts included, are the actions of real people, most of whom will be citizens. Would a court define “non-citizens” as a group of citizens who associate together in the corporate form?

Lessig invokes the framers of the Constitution to support his concern about non-citizens. Here he has some historical warrant for his arguments. The founders were concerned about foreign influences undermining the new republic in favor of monarchy. But the United States is now much older and more stable and aptly open to foreign influence through investment and trade. If anything, its citizens are too concerned about the dangers coming from abroad. That is all the more true when the non-citizen or “the foreigner” is identified as other Americans who happen to be associating in a corporate form.



Democracy Will Survive Citizens United

At Politico Arena, today’s focus is on the Court and campaign finance.

My comment:

The ink is barely dry on today’s Citizens United opinion, and the hysteria has already begun.  Set aside the misunderstandings we’re seeing in some of the comments here at the Arena – corporations still cannot, for example, contribute directly to campaigns – even some of those who understand the law and this decision would have us believe that the world as we know it is coming to an end.  Thus, the inimitable Rick Hasen, whose knowledge of these issues is second to none, tells us that “today’s Supreme Court opinion marks a very bad day for American democracy.”  And attorneys at NYU’s Brennan Center, which made its reputation promoting campaign finance “reform,” head up their post with this: “After the Flood: How to Save Democracy Post Citizens United.”  One imagines the Dark Ages just beyond the gloaming.
 
Over on the Hill, meanwhile, Senator Russ Feingold, who’s having a bad day in what must for him be a bad week, promises darkly, “In the coming weeks, I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible.”
 
Relax.  Half of our states, states like Virginia, have minimal campaign finance laws, and there’s no more corruption in those states than in states that strictly regulate.  And that’s because the real reason we have this campaign finance law is not, and never has been, to prevent corruption.  The dirty little secret – the real impetus for this law – in incumbency protection.  How else to explain the so-called Millionaire’s Amendment, which the Court struck down in 2008.  That little gem in the McCain-Feingold “reform” package exempted candidates (read: incumbents) from the law’s strictures if they were running against a self-financed “millionaire,” who could not be prohibited from spending his own money campaigning.  Thus, the nominal rationale for the incomprehensible edifice we call “campaign finance law” – to prohibit corruption – suddenly disappeared if you were running against a millionaire.  Well, the Court, fortunately, saw right through that.  And a majority on the Court saw the light in today’s decision, too.  The First Amendment is not a “loophole.”  It’s the very foundation of our democracy, and we are the stronger today for this decision.

The Empire Strikes Back

The Citizens United decision is barely out, and incumbent members of Congress are vowing to restore restrictions on political speech.

Sen. Russell Feingold (D-WI) said: “In the coming weeks, I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible.”

In the House of Representatives, Robert Brady, Chairman of the House Administration Committee - the panel responsible for campaign finance regulations - sent out an email that said: “I will be working directly with my colleagues, the Leadership and the White House to study the Court’s decision and to put together a timeline for legislative action that ensures the Court’s decision will not define the ways elections are conducted in 2010.”

It is difficult to see how Feingold, Brady and other members of Congress will be able to get around the clear and certain language of the Citizens United decision. But they will try. Nothing worries members more than free and critical speech, especially when the upcoming election already looks really bad for incumbents.

Lessons from the Brown Victory in Massachusetts

In this new video, Cato’s David Boaz and John Samples evaluate what Scott Brown’s victory in Massachusetts means for Democrats and Republicans in the near and far term. Samples and Boaz contend that Tuesday’s election sent a message to Democrats that they have clearly overreached, but Republicans need to be careful and realize that they’re still not very popular either.

Watch:

John Samples is the author of the forthcoming book, The Struggle to Limit Government, available soon at the Cato store.