It will be tough reversing Citizens United

There are a large number of constitutional amendments being proposed to reverse the effects of the recent US Supreme Court decision in Citizens United v. Federal Election Commission.

Here the court held that Citizens United, a group which had produced an anti-Hilary Clinton documentary, had the right to run ads promoting their documentary and its anti-Clinton message. It had been held at the lower court that because the documentary and thus the ads advocated against a candidate, they were restricted under campaign finance rules. Earlier, however, the court had held earlier that it was OK for Michael Moore to run ads for Fahrenheit 9/11, his movie which strongly advocated against re-electing George W. Bush. The court could not find the fine line between these that the lower court had held, but the result was a decision that has people very scared because it strips most restrictions on campaigning by groups and in particular corporations. Corporations have most of the money, and money equals influence in elections.

Most attempts at campaign finance reform and control have run into a constitutional wall. That's because when people talk about freedom of speech, it's hard to deny that political speech is the most sacred, most protected of the forms of speech being safeguarded by the 1st amendment. Rules that try to say, "You can't use your money to get out the message that you like or hate a candidate" are hard to reconcile with the 1st amendment. The court has made that more clear and so the only answer is an amendment, many feel.

It seems like that should not be hard. After all, the court only ruled 5-4, and partisan lines were involved. Yet in the dissent, it seems clear to me that the dissenters don't so much claim that political speech is not being abridged by the campaign finance rules, but rather that the consequences of allowing big money interests to dominate the political debate are so grave that it would be folly to allow it, almost regardless of what the bill of rights says. The courts have kept saying that campaign finance reform efforts don't survive first amendment tests, and the conclusion many have come to is that CFR is so vital that we must weaken the 1st amendment to get it.

With all the power of an amendment to play with, I have found most of the proposed amendments disappointing and disturbing. Amendments should be crystal clear, but I find many of the proposals to be muddy when viewed in the context of the 1st amendment, even though as later amendments they have the right to supersede it.

The problem is this: When they wrote that the freedom of the press should not be abridged, they were talking about the big press. They really meant organizations like the New York Times and Fox News. If those don't have freedom of the press, nobody does. And these are corporations. Until very recently it wasn't really possible to put out your political views to the masses on your terms unless you were a media corporation, or paid a media corporation to do it for you. The internet is changing that but the change is not yet complete.

Many of the amendments state that they do not abridge freedom of the press. But what does that mean? If the New York Times or Fox News wish to use their corporate money to endorse or condemn a candidate -- as they usually do -- is that something we could dare let the government restrict? Would we allow the NYT to do it in their newspaper, but not in other means, such as buying ads in another newspaper, should they wish to do so? Is the Fox News to be defined as something different from Citizens United?

I'm hard pressed to reconcile freedom of the press and the removal of the ability of corporations (including media ones) from using money to put out a political message. What I fear as that to do so requires that the law -- nay, the constitution -- try to define what is being "press" and what is not. This is something we've been afraid to do in every other context, and something I and my associates have fought to prevent, as lawsuits have tried to declare that bloggers, for example, were not mainstream press and thus did not have the same freedom of the press as the big boys. There will be efforts to say that we won't define who is press and who isn't, but rather will control how you spend your money. That indeed the NYT can say whatever it wants in its megabuck newspaper, but it can't buy ads to say the same thing in another newspaper. I'm certain that the corporate money will quickly find loopholes in such distinctions, creating shell corporations which meet whatever definition of media corporation is used, and promoting their messages. Unlike the old world, today creating a media business is much easier. Even traditional media, eager to get campaign dollars, will find loopholes. They will sell shares which include the right to write today's editorial message, if that is what is allowed. They will find loopholes that neither you, nor I can think of, because they have billions of dollars at stake that depends on finding them. And to stop them, we will try even harder to define what is press, and what is political speech. When the law tried to stop the rich from donating to campaigns they found other ways to make it happen, and they will continue to.

Consider as well what some of the amendments say on their face. They give congress the power to control how money is raised and spent on campaigns. On the campaigns of the people trying to replace them. Many of these amendments don't try the hard task of defining fairness in the rules. They would technically make it constitutional to pass a law saying "No member of a party starting with D may spend more than $100 on their campaign." Ridiculous, but legal. If it does happen it won't be anything so unsubtle. But people have passed huge numbers of laws which give the appearance of fairness but in fact benefit their party over opponents. Redistricting is a great example, along with poll taxes, reading requirements and many other examples that litter history. Do we really want to give congress the power to regulate the rules of elections? They will change the rules to protect incumbency, and their party, I can assure you. And forget about minor candidates.

Is there an answer to the corruption of politics by all this money? It's not easy. My current best hope lies in a plan I am working on to exploit the fact that the media world is in the process of being turned upside-down by internet media technologies. In 2008, the presidential campaigns spent, it is estimated, some $500 million on broadcast ads -- the majority of what they raised, and only $50 million on internet campaigns. This will change in the decade to come. Today, candidates become beholden to special interests primarily for one purpose -- to buy broadcast ads. As that changes, I hold out hope for the prospect of making it no longer necessary to raise huge sums to run a workable campaign. We can't do this yet, but in the future we might. It may be, that if this happens, that the river of money will find somewhere else to flow and buy influence. But perhaps this can be reduced. It would be a shame if we revolutionized the economics of media and advertising and didn't manage to change their role in politics for the better. More on this later.


You wrote:
Corporations have most of the money, and money equals influence in elections.

Um, is it the case that "Corporations have most of the money?" How are you calculating that? I'm pretty sure it's not true. According to a few news stories US corporations only have ~$3 trillion in cash; US households in aggregate have a fair bit more than that saved up.

You may be correct on the cash balances. I believe the stronger effect of corporations derives from a number of things

  • Corporations have large sums of liquid money they can make a discretionary spend on
  • For corporations, it is a business decision, or is supposed to be. Is spending money on a candidate going to be beneficial for the business. That can come in two forms. One, fairly legitimate, is that the candidate stands for things that will create a better business climate. The darker side is that the corporation will then purchase influence over the candidate.
  • Corporations (and other groups) are the principal ones who can make a donation large enough to be significant and thus able to purchase influence. You just can't buy a lot of influence with a $1,000 personal donation.
  • Even without anything corrupt, politicians do seek to please their donors, and they naturally will please the top donors and can't afford to address, other than in aggregate, the desires of the long tail of donors.

"Do we really want to give congress the power to regulate the rules of elections?"
No, but I think we are in a position of having to choose the best of all possible bad options. If its a choice between congress having the power to regulate elections, and having a small number of oligarchs effectively control all elections outcomes then I think congress wins. For what its worth since we have an open party system (one becomes a member of the party by declaring oneself so), giving up minor parties is not much of a loss. The candidates define the party, not the other way around.

For what its worth I think we should define a "press" entity that enjoys broad first amendment protection (perhaps they need to be non-profits). Any other entity set up for another purpose, such as a non press business or a union, isn't allowed to do political advocacy, period. Non-press entities are forbidden from ownership in press entities. Specific organizations for political advocacy could be formed, but they would be subject to strict disclosure and candidate coordination rules, as well possibly of contribution limits. They of course could not receive contributions from any organization, only individuals. We run into the problem of corporate officers laundering corporate contributions through their compensation - have yet to deal with that.

This definition of press is exactly what I want to avoid. Free press, untouchable press, have been so important to freedom in all the places where it has flowered. However, we are in the process right now of rewriting the rules of press, thanks to the internet. Now is a poor time to stick legal definitions on it.

I would not give up minor parties (who are present in most other countries, and with power) so easily.

But I am not convinced there are only two options -- these amendments vs. too much power to the rich. But perhaps an answer can be found along the lines of Lessig's amendment, where he proposes a special independent elections commission. Does it make sense to have a 4th branch of government (or a wing of the judiciary) which has power to control just how the 2 elected branches are elected, and is somehow driven to serve only the public interest? With a budget (if public funding is their choice) equal to what was raised privately in years past?

And what about striking the actual problem -- corruption -- rather than its cause? What if corruption came with a minimum 20 year prison term?

How do you define "corruption"? The money is what drives the corruption, you have to fix the cause, not the symptom. Fix the money problem.

The problem is that the rich have learned they can manipulate the electorate into voting them largess from the public treasury.

It has many causes:

  • Politicians do favours or grant access to those who contributed to their campaigns, punish those who did not
  • Politicians and staffers do this for companies they plan to work for after being in government
  • Politicians and staffers do this for their buddies
  • Some of them take old fashioned bribes
  • They do what they think is most likely to get them elected rather than what they think is best for the country or their constituents.

It's any time they act for another motive than the benefit of their country and constituents. Helping contributors is one of the biggest reasons of course. But what is the root cause? For example, as I point out, they reason they take all this money is mostly to buy ads. The way political advertising works is something we actually have some power to change.

OK: Take this case: A for profit company that contracts with school districts to operate schools spends big bucks promoting a particular candidate for a local school board. That school board then votes to contract with the company. Is there corruption here? The company was just excersizing its free speech rights, the candidate was just voting for what he believes. No corruption there!?!

The problem is that the electoral process is corrupted although none of the actors are corrupt!

One of the important realizations is that there is a limited forum for free speech. When someone takes up piece of that forum they reduce the free speech of everyone else simply by taking up room. So when big corps buy up significant parts of the forum they actually restrict free speech for individuals. There are obvious extremes that illustrate the point: political groups have moved to purchase all or large parts of available advertising broadcast time in some markets to deny access to others.

Once you give the government the power to filter and censor speech, the government will filter and censor speech... and probably not the speech you expected them to filter or censor.

The solution to bad speech is more speech.

You wrote: "The problem is this: When they wrote that the freedom of the press should not be abridged, they were talking about the big press."

Actually, since there was no such thing as a "big press" at that time, what they were actually protecting with the 1st Amendment was the right of the small press, of EVERYONE, to publish whatever they want to publish about government, politics, religion, individuals, businesses, science, art, theater, etc., as long as what is written can not be proven to be libelous (in which case the writer could be sued). This part of the 1st Amendment absolutely covers bloggers, commenters, LTEs, pamphleteers, writers and publishers of books and magazines, and (of course) the mainstream media.

But in the 18th century it was hard for an individual pauper to have a huge audience. Today the internet allows that. The only people who had a huge audience owned a newspaper, and while they were not of the size of today's newspaper's, the larger ones still had an organization behind them and a person of some moderate wealth and influence. In revolutionary times, of course, they were being shut down by the crown, one of the reasons for the 1st amendment. But until the internet came along, freedom of the press belonged to those who have a press.

And powerful rich media have been essential. You've needed a Washington Post that could back Woodward & Bernstein against Nixon. A NYT that could fight over the Pentagon Papers. We need big media, and we must not give the government any power over them, including at election time. Possibly especially then.

"Today the internet allows that."

Its not as free as you think. Try buying keyword ad on any search engine related to books or music. You CAN"T do it because the big guys (amazon) have locked up all the advertising. At this point it is impossible to start an internet competitor to Amazon in certain segments because you will NOT be able to advertise it on google.

Of course you want to censor speech. It's just that you want to censor right-wing speech paid for by corporations whose anti-Democrat agenda you happen to dislike.

What's driving you in crazy circles is that you are sincere about not wanting all speech in general to be censored, and you are (uncommonly) intelligent and honest enough to recognize that there is a wee bit of a problem with "Congress wins" being the final authority on who, in the United States of America, is allowed to make which political statements when with their own money.

Freedom only becomes real when it includes the freedom to say things that other people find deeply offensive and scary. It only becomes possible to fantasize about some other form of "freedom" if you believe that you are going to be the sole authority deciding everybody else's "freedoms" for them, and that such authority will never be used on you. History does not strongly support such a belief.

Mercifully, this is unlikely to become a real problem, since passing an anti-free-speech amendment would probably start the Second American Civil War, and thus be a self-correcting political error.

I think I see a wee bit of a problem. And while there may be people who want to censor one party over another (Obama raised and spent a lot more than McCain in 2008 so your impression the Republicans are more interested in having big money may be incorrect.) Of course I didn't vote for either.

No, the core problem, which most people is real, is not the speech, but the fact that money buys influence. Some people have decided since money buying speech buys influence, we need to target the speech. That's the error.

"Obama raised and spent a lot more than McCain in 2008..."

Wow, you are +2SD above mean g for the Internet!

Yes, Obama was hugely funded by private (and not very well traced) supporters in 2008, and will undoubtedly be again in 2012.

Lots of luck getting the mainstream media, whose workforce voted ~90% for Obama in 2008 and will certainly do the same in 2012, to even vaguely acknowledge that fact, let alone acknowledge the contradiction between wanting to "regulate" the Koch brothers but leave Obama unfettered.

More generally: I don't see any way that you can get rid of "the influence of money", given that money is the universal medium of exchange in post-subsistence societies and that having more of it lets you do more things. I think you could probably level the playing field by giving everybody an IQ of at least 120 and producing enough surplus wealth that everybody was, by our 2011 standards, upper-middle-class or upper class. The former is probably possible given sufficiently advanced biological technology -- say by 2051. The latter is possible if we ever stop sucking our thumbs and greatly expand technological development by making physical energy more inexpensive and abundant (e.g., drill-baby-drill plus nuclear) and invest more time and effort into scientists and engineers, less into stockbrokers and lawyers.

It'll probably all happen, but we may need to watch the United States split into 2+ countries first. By 2051, the Republic of Texas might be a very cool place to live and work, particularly if it reaches all the way west to San Diego.

All those proposed amendments would regulate speech. I propose that instead we regulate corporations -- which we can do WITHOUT a constitutional amendment.

The problem is not "corporations" buying ads. It's large, public corporations buying ads. If Moe Smith, Inc. buys an ad, there's no more harm than if Mr. Smith does it himself. But when, RJ Reynolds Corp. buys an ad, it uses the money of tens of thousands (at least) of shareholders, so it has a huge effect. Worse, it spends that money either to make money for the shareholders or for the CEO, no matter what the shareholders themselves want. Your own pension fund may be investing your money, right now, in a company that is buying ads to elect someone you hate. That's the real problem here.

So the fix is simple: Require majority shareholder approval, no proxy votes or voting trusts allowed, for each and every instance of corporate political speech and spending. Prevent the obvious end-run by providing: If the corporation is a "shell" subsidiary -- that is, if the majority of its shares are held by a single entity or by supposedly-separate entities ultimately controlled by a single entity -- then require majority approval by the parent corporation's shareholders.

Make that very simple, constitutional change in corporate law, which changes nothing about free speech, changes only slightly the balance of power between shareholders and management, and will not affect most corporations at all, and you solve 99% of the problem.

Actually, while the idea of donations from the likes of Exxon is the bogeyman that scares people, I don't think that's the major source of the problem, and I agree that if it were, it would not be hard to regulate it.

Corporations, especially public ones, have a duty to their shareholders. Their donations and expenditures are public, and there must be a financial motive, and if it can be made clear that this motive is not access and influence.

It's the private parties and consortia whose speech is more pure, more political, and which can't be regulated under the 1st amendment. The groups like Citizens United. The Koch family, etc. People who pool money to be big enough to get noticed, and make the candidate indebted to them.

Respectfully, you seem to have it backwards. No court has ever found that any public corporation betrayed its duty to shareholders, by making lawful political contributions or statements. A corporation's duty, under current law, is solely to make more money for its shareholders -- and "access and influence" are always in the company's financial interest. Corporations have no duty, none at all, to carry out shareholders' private moral views. Most corporate charters don't even give shareholders any way to demand a vote on this sort of question. That's what my proposed bill would change.

Truly private parties and consortia are not a big problem, because of their size. Individual private parties, even companies, do not leverage vast quantities of other people's money, so their impact is limited. As for consortia, what exactly is the problem with people choosing to pool their own money? If it's really their choice (and not a bribe), why not? You and 100 readers can buy an ad if you want, and why not?

Yes, it's frustrating when our side is routinely outspent by the richer side, but that's life. In a country with such a strong tradition of being able to buy your own megaphone and say things as loudly as you want, we're not going to get anywhere trying to change that. And I for one don't want to give our government the power to shut down (non-bribe) speech, for the reasons you stated in your post.

I agree this is not something a courts will easily rule. The issue is that if challenged on this, they would indeed have to explain the financial benefit, and if it's not lawful to buy influence, they would have to show the math on why the corporation was predicted to make $X more profit with candidate X than Y. Not that they can't do it, but to justify that would moderate the flow here.

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