Old legislators’ homes? Election by lot? Repealing the 17th amendment? Is there an “all of the above” option?

Over at the Liberty Papers, Quincy offers a distinctive take on Obama’s attack on the Citizens United ruling.  Money quote:

It is not the thought of special interests influencing politics that scares the ruling class. It is the thought of special interests influencing politics without them that does.

“Reformers should be focusing on lifting limits on the flow of money from parties to candidates and restoring the role of the parties as the funders of campaigns. Instead of Candidate Smith asking Donor Gonzalez for money – and Donor Gonzalez asking for a favor in return – party chairman Robinson will ask thousands of donors for money on behalf of a slate of candidates, who will never know precisely whose gift was directed to them. That step will diminish corruption and the appearance of corruption.” ~ David Frum

I asked our own Mark Thompson what he thought of this idea, and Mark replied:

From a corruption standpoint, Frum’s proposal is a recipe for creating machine politics on a national scale.  Strengthening parties is a guaranteed way of ensuring that everything will be a party-line vote, which may or may not be a bad thing, depending on your perspective.  But because it strengthens parties so much, it just shifts the appearance of corruption from individual politicians with only one vote or one voice who are at least nominally accountable to the electorate to national party chairmen with near-absolute control of every vote in their party and of every agenda item in their party who are not even nominally accountable to the electorate.  It amounts to the Boss Tweed-ization of national politics.  My feeling is that corruption would be better addressed by weakening parties through various ballot reforms.  That’s also one of the benefits of this recent decision – it weakens political parties quite a bit.

This is the danger of campaign finance reform – the unintended consequences of ideas which on their face seem pretty good.  Similarly, while I really enjoyed Glenn Greenwald’s piece on Citizens United, I think that his idea for reform is both vague and probably a recipe for unintended consequences as well:

There are few features that are still extremely healthy and vibrant in the American political system; the First Amendment is one of them, and the last thing we should want is Congress trying to limit it through amendments or otherwise circumvent it in the name of elevating our elections.  Meaningful public financing of campaigns would far more effectively achieve the ostensible objectives of campaign finance restrictions without any of the dangers or constitutional infirmities.  If yesterday’s decision provides the impetus for that to be done, then it will have, on balance, achieved a very positive outcome, even though that was plainly not its intent.

I’m right with Greenwald on pretty much everything up to that last bit.  What does meaningful public financing of campaigns mean?  And even if we could find a way to actually publicly finance everybody without creating a huge barrier to entry in politics, would this really even begin to address the problem of corporate influence in Washington? If it would, then I’d fully support it, but I can’t help but think that the corporations and special interests would simply find other ways to lobby and peddle influence.  Transparency is the only thing I can think of that can really even begin to break the stranglehold corporate interests have over Washington.  All the rules and regulations we can dream up, they can get around.  And neither Frum or Greenwald seem to provide the answer to that.

Yesterday, the Supreme Court struck down its own precedent in order to overturn campaign finance laws prohibiting corporations and unions from making “independent expenditures” relating to political campaigns within the weeks leading up to an election.  The opinion is certainly significant.  For those of us of a more libertarian mindset, it is a huge blow for free speech.  For those of a liberal mindset, it is a huge blow for corporate influence over our electoral process. 

Needless to say, I find the majority opinion written by Justice Kennedy persuasive.  Surprisingly to me, I found Justice Stevens’ dissent unusually weak and full of obvious holes, at least outside of his arguments for stare decisis.  There are a couple of key issues in the case that are particularly worth discussing and that will also, hopefully, alleviate the fears that somehow this decision will mean more corporate dominance of our political process. 

At the outset, let us be very clear – the existence of a free speech issue here is very clear.  The laws prohibited virtually any kind of advocacy for a candidate by a corporation or union in the days and weeks leading up to an election.  Corporations and unions are nothing if they are not associations of actual, real persons.  Moreover, included in the concept of a “corporation” for these purposes are non-profit corporations that expressly exist as political advocacy groups.  However, certain corporations are expressly excluded from the law, to wit: media corporations. 

The majority argues, correctly in my view, that the distinction between media corporations and other corporations is arbitrary, and that indeed, this distinction proves that corporations in general cannot have meaningfully diminished First Amendment rights.  Professor Volokh beautifully and succinctly explains this argument here.  So, either corporations have something approaching full First Amendment rights, or the government has the authority to severely restrict the First Amendment rights of media corporations.

This brings me to the first example of why Citizens United decreases, rather than increases, the relative influence of large corporations over our elections.  This time I’ll point to Professor Volokh’s brief follow-up post, and especially his point 2.  Specifically, the result of the decision is that the longstanding monopoly of media corporations on the ability to widely disseminate editorial opinions on elections is at an end.  Except for the fact that we may find ourselves annoyed by the even-higher presence of campaign ads on our TV come election season, this is an altogether good thing for democracy. 

The second, and to my mind more important, result of this decision will be to make it easier for smaller businesses and non-profits to have a voice in the system.   In his dissent, Justice Stevens goes to great lengths to explain how the ban on pre-election political ads by corporations isn’t really a ban because corporations and unions can just act via a Political Action Committee (PAC).  He acknowledges that acting through a PAC is a burden on corporate speech, but claims that it is a burden that can easily borne by a sophisticated modern corporation (whether for-profit or non-profit).  Ok, fair enough.  The trouble is that he assumes that all corporations are sufficiently sophisticated and large to be able to set up a PAC, with all of the attendant regulatory and reporting requirements that entails.  Not so.  Indeed, as the majority points out, there are millions of corporations in the United States, but less than 2000 corporate PACs.  It doesn’t take a rocket scientist to figure out the types of corporations represented by those PACs, nor does it take a genius to figure out the types of corporations that are not represented by those PACs. 

In short, the existing system’s response to free speech concerns (PACs) acts only to ensure that large corporations are already able to have near-unfettered participation in the electoral process, as long as they first overcome some regulatory hurdles that are relatively minor for them but are significant for smaller, less sophisticated enterprises.  Smaller corporations are effectively shut out of the system, thereby reinforcing the oligopoly of influence over elections and influence markets enjoyed by their larger, more sophisticated brethren.  This changes that.  Yes, it removes the bar on direct participation that large corporations had to skirt via PACs, but this was hardly an effective or meaningful bar for those corporations in the first place.  In return, smaller corporations (again, including smaller advocacy organizations) have an opportunity to participate in the process on at least some level, reducing the comparative voice of the larger participants (though perhaps only marginally).

My expectation is that although this decision will certainly increase the voice of “corporations” writ large in our elections, it will do so by causing an increase in the number of corporate voices (again, remembering that this includes non-profit advocacy corporations) involved in the process beyond the usual suspects, and thus decreasing the relative voice of any one corporation or group of corporations.

ADDENDUM: Cf., Matt Welch:

When a law requires any group of two or more people who raise $5,000 for the purposes of making a political statement to adhere to a blizzard of federal regulations subject to fines, that law by definition chokes off the “voices of everyday Americans” that President Barack Obama, in his ridiculous reaction to the decision yesterday, expressed outrage on behalf of. Free-speech campaign-finance enthusiasts are willing to censor or chill those small voices for the greater purpose of attempting (and largely failing) to blunt the political activity of hated Corporations (or “Wall Street banks, health insurance companies and the other powerful interests,” in the words of a president who has been bailing out Wall Street banks and crafting legislative deals with health insurance companies and other powerful interests for a year now).

ADDENDUM II: Ilya Somin goes into a good amount of depth to explain why the inequality argument for prohibiting corporate speech would simply exacerbate the relative effects of other existing, and arguably more severe, forms of inequality.  In a nutshell, eliminating corporate speech magnifies the speech of famous athletes.  Somin also addresses the argument that “corporations are not people” here.

by Kyle Mathews

If there’s one thing that most political commentators and Americans can agree upon, it’s that Congress is bad at its job. Presidential approval ratings go up and down, Congressional approval ratings pretty much stay down. These days, it’s become de rigueur to point to hyper-partisanship, legislative relics who’ve all but become permanent fixtures in both houses, the pervasive and harmful influence of special interests in the legislative and electoral process, and the regularity of ethical lapses and scandals.

The prevailing sentiment of the day seems to be “Congress is good, but the people in it are terrible,” and many of our attempts to address Congressional shortcomings stem from that mindset. Recent examples include campaign finance reform, lobbying disclosure requirements, hiring bans, transparency initiatives, and “the most ethical Congress in history.” These reforms aimed to keep bad people out of politics so good people could do good work.

This focus on bad actors; however, ignores the ways in which the system itself incentivizes bad actors. To run for Congress, stay in Congress, and pass legislation requires money, votes, influence, popularity, allies, and expert knowledge. Those requirements increase the value and leverage of organizations or individuals that can provide one or more of those to a significant degree, making those groups something of a super-constituent. These include donors, interest groups like the NRA or SEIU, think tanks like Brookings or Cato, fellow politicians, and the parties themselves.

Super-constituents distort representative government by creating incentives to value the priorities and contributions of a select few over those of a legislator’s constituents. Super-constituents also retain the power to punish elected officials more easily and more severely than regular constituents, by endorsing competitors, stripping legislators of seniority or committee membership, and cutting off access, particularly to donors. With this in mind, more significant reforms modifying the structure of the United States Congress or rather how it does business, not just who shows up to do it, need to be considered.

Broadly, we need reforms to accomplish more legislative/legislator independence, a better representation of people and collective interests, and a greater emphasis on work rather than optics and political gamesmanship.

More specifically, we would benefit from:

· More accurate representation of constituencies;
· Less partisanship;
· Incentives for legislative leadership;
· Breaking up entrenched power;
· Addressing the disproportionate influence of extra-legislative entrenched interests;

To accomplish some of those goals, or at least put us on the road to a less dysfunctional legislature, consider this slate of 8 reforms. [Read more →]

To respond briefly to Jamelle’s response to my response to his response to Ross Douthat’s latest column (got that?), I think he’s right that thorough-going campaign finance reform would solve a lot of structural problems associated with regulatory capture and special interest groups. Given Jamelle’s affinity for the Northern European political model, I wasn’t surprised to find that every Scandinavian country directly subsidizes political parties.

Obviously, I have a lot of problems with this approach. I dislike the idea of having governments allocate funds to political parties. I also think that contributing money to a candidate or a political organization is too tightly bound up in the idea of free expression to limit campaign contributions without doing serious violence to the spirit of the First Amendment.

That said, countries like Denmark and Finland have managed to preserve public funding without compromising political freedom. Every Scandinavian country, for example, is ranked favorably by FreedomHouse’s annual index of political freedom.

The quality of Scandinavian governance hasn’t exactly suffered, either. Nordic countries are routinely ranked as having some of the least corrupt governments on the planet. When Matthew Yglesias observed Danish political opinion coalescing around the idea of a revenue-neutral carbon tax, my first reaction was “Hey, that’s the same idea conservative economist Greg Mankiw proposed!” – except that both Mankiw and his critics acknowledge the impossibility of pushing through a reasonably effective green tax in an American political context. Indeed, Jim Manzi’s comprehensive case against a carbon tax hinges on his incredibly pessimistic (and probably accurate) view of Congressional special interest peddlers.

So as a purely empirical proposition, maybe campaign finance reform is a win from the perspectives of both good governance and political freedom.   Libertarians and conservatives emphasize the influence of money in politics because it lends credence to the notion that we should downsize government. I find this analysis pretty persuasive, but it doesn’t look like we’re going to start cutting off federal agencies anytime soon. Given these circumstances, perhaps it’s time to give campaign finance reform another look.

Reading over Will’s post about Geert Wilders’ manifesto to save Western Civilization got me thinking.  Not so much about Wilders or the actual manifesto, given that I think he is a Class A wackjob, but it brought to better articulation something that was on my mind (vaguely) in the recent dustup between Brs. Freddie and John Schwenkler.

Their debate started on the issue of Campaign Finance but then broadened to an interesting discussion of competing political philosophies.  The poor man’s version of that debate goes as follows:

–Freddie pointed out that the best intentioned aim of something like a campaign finance law is to prevent a plutocratic form of moneyed interest dominance in governance.  He went from there to say (I think correctly) that libertarianism as a political philosophy does not have built in mechanisms to protect workers/lower classes.

–John then responded (also correctly) by pointing out that the business class would not be interested in a whole swath of other libertarian policies:  i.e. no bailouts, tax loopholes, or favored industries etc.

Now at the risk of roiling the waters here, it was my sense that neither of them was really willing to acknowledge the valid elements of the other’s point of view.

And part I think of why the lack of recognition takes place has to do with power.  Which brings us back to wacky Wilders.  Amidst his xenophobia, racism, and felonious crimes against fashion, he was actually onto a legitimate question, a question which I think will be a very important one for 21st century governance.  Namely, at what point does a philosophy that aims for non-coercive behavior and attitudes need to apply coercion to protect the already well-established levels of non-coercion against coercive (illiberal) realities?  Is there ever such a point? And I don’t mean this in some fantastical Jack Bauer/Dick Cheney ‘we need some to walk on the dark side’ kinda thing.  Nor do I mean in some Mark Steyn hysteria-fest about how the evil Muslims are going to take over Europe and destroy civilization. Nor less the even more ignorant and irrational fear of some worldwide clash against Islamo-whateverism.

There are no Soviet commies around anymore, fascism is dead and gone.   The democratic powers of the world are not seriously threatened by some rising league of autocracies.  And even the global terrorist threat while able to land horrible attacks cannot and does not threaten the US government–unless of course we over-react in response to an attack and choose a path of soft authoritarianism.  [Which btw was precisely Woodrow Wilson's point about making the world safe for the liberal democracies in existence].

We live rather in a post-ideological age with no alternative economic system to dominant capitalism.  So on one level, the question about the degree to which Western governments need to face their own limits to power takes place in a somewhat more relaxed environment.  On the other hand given the nebulousness, the ambiguity of this  age and its players, it is a somewhat more difficult (and therefore I believe more pertinent) discussion to be had.

By examining one’s own coercion, I mean it both more prosaically (with the plethora of daily level stultifying regulatory nonsense) as well as more dangerously realistic (e.g. to publish or not publish photos of torture?) than the fantastical hyped scenarios.   [Read more →]