By Jane Anne Morris
This article was written around the time Maine and a few other states were considering “campaign finance reform” laws. The historical perspective, even in the aftermath of the Citizens United case, shows us how little has changed. Many of these issues have been discussed by Maine labor activist Peter Kellman, author of Building Unions: Past, Present and Future.
The word “reform” has lost some of its luster lately. Remember regulatory “reform”? Health care “reform”? And then welfare “reform”?
As we stand today, up to our armpits in schemes for campaign finance “reform,” we need to make sure that our proposals are grounded in principles that we at least recognize. All the better if they are explicitly democratic.
A bit of history will provide some perspective on how “campaign finance reform” efforts came to assume their current form.
A generation ago public disgust at the way elections were run reached one of its periodic peaks.
That last big wave of “campaign finance reform” was set into motion by corruption at CREEP (the Committee to Re-Elect the President) during the Nixon Years. Responding to a public outcry, Congress passed the Federal Election Campaign Act (1971; amended 1974).
What washed ashore shortly thereafter were corporate PACs (political action committees) and the now-legendary Buckley v. Valeo (hereafter, Valeo) Supreme Court decision (1976). Conditions being optimal, the scum left behind at reform’s high water mark has ripened into the sleaze that is now rotting all around us.
Even more disturbing than the failure of the Watergate-era “reforms” to restore some sense of decency to our election process, is the growing evidence that we have learned very little in the last quarter century. What is the sense of making a mistake if you’re just going to repeat it?
Our democracy is going down the tubes and we are avidly arguing about precisely what formula corporate managers and the very wealthy must use to funnel millions of dollars to targeted candidates.
While corporate speech saturates the supposedly “public” airwaves, we’re debating about whether or not we dare to restrict independent expenditures. Nay, we’re debating about how to even define independent expenditures.
Meanwhile, we’re not confronting issues such as…
- Is money speech?
- Should a transnational corporation have the same rights as a human person to participate in the democratic process?
- If this is a democracy then shouldn’t all citizens, regardless of their economic status, be equally able to run for office?
It may be another generation before as much momentum and outrage is again built up around this issue. It would be nice to leave a more democratic heritage than the seventies left us in the form of the FEC Act and the Valeo decision. That is possible only if we first understand the assumptions gently but insidiously folded in the FEC-Valeo package, now the “law of the land.”
Money and Speech
First, the issue of viewing money as a form of speech.
If you start out with “separate but equal,” you end up counting drinking fountains to measure equality. Today, starting with “money is speech,” we are doing little more than counting dollars to measure democracy. We’ve missed the point.
How did we come to such a state that we can talk about free speech only by talking about money?
The money equals speech equation derives from the Supreme Court’s 1976 Valeo decision. In a nutshell, in that decision the Court held that as far as campaign expenditures were concerned, money is speech. Therefore limits on expenditures were limits on free speech, which is a constitutional no-no unless “compelling” circumstances are demonstrated.
To complicate the picture further, the Court in Valeo also ruled that though spending money is free speech and cannot be limited (as the original FEC Act provided), donating money is a slightly different kind of free speech that can be limited.
So, while demand (expenditures) was unlimited, supply (contributions) was limited, thus creating a perfect setting for a search for creative “bundling” of contributions, the opening up of numerous “conduits” for funds, the use of “independent” expenditures, and the proliferation of other kinds of “soft money”(unregulated expenditures). And that is what happened.
The near unanimity of opinion concurring that money equals speech is striking. From Valeo:
“One of the points on which all Members of the Court agree is that money is essential for effective communication in a political campaign.” (J. Marshall, p. 288)
“[V]irtually all meaningful political communications in the modern setting involve the expenditure of money” (p. 11)
“[C]ontributions and expenditures are at the very core of political speech” By Appellants, 424 U.S. 15, Valeo
“[V]irtually every means of communicating ideas in today’s mass society requires the expenditure of money” (p. 19)
This assumption is echoed in today’s debate.
“Money in politics is not evil. It would be impossible to have good democracy without paying for candidates to talk with voters…”1
“Nobody is proposing to take money out of politics….The reform debate is about how to regulate the flow of money, not shut it off.”2
It was not always so.
In the early days of the First Amendment in this republic, all information and discussion was either by word of mouth — “live” — or by means of reading the printed word. Informal talks, handbills, newspapers, and songs were all part of the public debate. Much later, the air waves — radio and television — became available as media for communication.
Other changes occurred as well. The open market place at the crossroads was replaced by the shopping mall. Time once spent in public areas exchanging news and views is now spent in front of the blue glow of the television set. The meaning of free speech rights has been altered correspondingly. The First Amendment rights of human persons have been progressively restricted, primarily through a steady expansion of the concept of private property rights and an ever-growing laundry list of what the government may prohibit by sweeping it into the category of “public safety” laws.
What this means in practical terms is that a human person’s free speech rights are severely restricted in the workplace, at the shopping center, and on the street corner. But in these same contexts, First Amendment rights of corporate “persons,” as interpreted by the courts, are almost limitless. So as we human persons work and shop, we are bombarded by corporate “free speech” but may not exercise our own First Amendment rights much beyond asking where the bathroom is or what something costs.
From here on out the magic works by itself. You need money to be heard in the only places that matter; corporations have both First Amendment rights and ample funds; hence, only their views are heard. But any “person” (that means you the reader, or a transnational corporation) is equally free to take out a full-page advertisement in the New York Times, or buy a minute of air time for a half a million bucks.
There is a further twist. The air waves supposedly belong to the public, but our federal regulatory quagmire has leased them to private corporations for a song. These media corporations use them to make huge profits, partly by selling the public’s own air waves back to them through public financing of campaigns.
Free civic forums where people can speak truth and debate ideas without fear of harassment are almost nonexistent. Potential forums that remain (like the news media, malls and workplaces) are “private” property where free speech by human persons is either forbidden, severely limited, or costs money.
If the only way to speak freely and be heard is to pay the powerful for a forum, then speech is not free.
Corporations and First Amendment Rights
Now to the second issue that we are not debating: Should a corporation have the same rights as a human person to participate in the democratic process?
The absence of this issue from the current debate is disturbing. When we neglect to even question whether corporations should have the Constitutional rights of human persons, we are drifting far afield from any real sense of democracy.
The word democracy, it should not need to be pointed out, means rule by the people: self-rule, self-governance. It is one of the shameful aspects of our history that it took great ferment to establish (at least theoretically) that people means all human beings, and not just the wealthy white males who framed the Constitution. How is it then that corporations have for a century possessed the core Constitutional rights of natural persons? Shouldn’t we debate this, or at least mention it, before embedding corporations even more deeply in our political process?
The FEC Act, like most discussions of “campaign finance reform,” does not distinguish between the rights of natural persons (legal parlance for human beings) and other entities such as corporations and committees.
How can we fail to distinguish people from corporations in laws about the democratic process itself? Our laws distinguish species of birds from each other; we have separate laws for all manner of fish and reptiles. Trees in your yard, trees on federal land, trees along rivers, and trees whose corporate “owners” are involved in leveraged buyouts of other corporations fall into different legal categories. But we lump people and corporations together as Constitutional “persons.”
People didn’t always think that corporations were entitled to Constitutional rights. Since the late nineteenth century the nine robed ones have been handing corporations many of the protections guaranteed to “persons” by the U.S. Constitution. But it wasn’t until the “reforms” of the 1970s that the idea that corporations had free speech “rights” began to be widely accepted.
If corporations have such Constitutional rights, perhaps they ought to vote and have their own named representatives in the halls of Congress. “The Chair recognizes the Senator from Union Carbide Corporation….from WMX Corporation….from the British East India Company……” and so on.
Democracy is not a matter of people negotiating with a corporation management team, or with an administrative board, or with a king. It is a matter of people talking with each other and deciding what their community, society and economy should look like. We should do it more often.
Imagine a law that prohibited corporations from engaging in any form of political activity. Imagine that breaking such a law was a felony, and that a corporation could be dissolved or kicked out of a state for disobeying it.
Wisconsin had such a law from 1905 until 1953. Check out this language. (Wis. Laws, Section 4479a. [Sec. 1, ch. 492, 1905]).
No corporation doing business in this state, shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.
The law was still on the books, with lessened penalties, until the early 1970s when the new improved FEC Act took effect.
It was not so long ago that corporations were not viewed as appropriate participants in elections. Democracy and free speech were for humans. Dare we think that way again? If we don’t speak truth to power about free speech, what grounds have we for democracy?
Who Should Be Able To Run?
And now the third issue that we seem unwilling to raise: If this is a democracy then shouldn’t all citizens, regardless of their economic status, be equally able to run for office?
Today, even with some “public funding” of campaigns, perhaps 80% of the population cannot even consider running for office. That we accept this as “normal” is a stinging indictment of how low our standards for measuring democracy have fallen.
Not surprisingly, most of the reasons why only a small percentage of Americans can even dream of running for office revolve around money. Who can take time off from work to campaign? Who is assured that after a campaign, or a term served, that they can return to a job? How many public offices provide only a token salary, thereby limiting those who can serve to the independently wealthy?
If we want free and fair elections, and not just campaign finance reform, we are going to have to think about and debate these issues.
Today’s Debate: Enter Maine
Against this historical and conceptual backdrop we can view current reform efforts through a distant mirror.
The recent upsurge of interest in what’s being termed “campaign finance reform” reflects people’s growing awareness that big corporations dominate our political process, and with it our economic and social lives. Corporations sip in our cup, they dip in our dish, they sit by our fire.3
If you said this only a few years ago, people called you a conspiracy theorist. Now they say either, “So what else is new?” or, “But there’s nothing we can do about it.”
All over the nation, people are trying to do something about it. Their efforts are termed “campaign finance reform” and many are hailing Maine’s new election law (the Maine Elections Act, passed by initiative in November 1996) as the pot of gold at the end of the campaign finance reform rainbow.
A cursory review of news clippings and editorials about the Maine Act speak of it as a “model,” as a “standard against which all other reform efforts are judged.” It is “far-reaching;” it is “revolutionary.” It “addresses nearly every problem that exists in the campaign world.” One commentator noted that the people of Maine had “reached for the stars.” Another stated flatly, “Maine is the future…We have to figure out how to do Maine everywhere.”
One would expect that such an initiative would represent a fearful threat to entrenched corporations in Maine, and nationwide. One would expect that such an initiative would be fought tooth and nail by the same powerful corporations that launched a successful media barrage to crush the anti-clearcutting initiative on the same ballot.
Instead, it was a real ho-hummer. There was no organized opposition to the Maine “campaign finance reform” initiative. According to Maine labor activist Peter Kellman, who followed the campaign closely and voted for the initiative in November, the only visible opposition was from the American Civil Liberties Union (ACLU).
(The ACLU evidently has embraced the money equals speech doctrine, and accepted the extension of Constitutional rights to corporate “persons.” Corporate donations and expenditures for political purposes thus appear as “free speech” issues.)
This great gaping corporate silence — remember how they handled Clinton’s “radical” health care plan — should be an alarm bell for us. Pretend you’re a CEO and see if you feel threatened by the Maine Act’s provisions.
The Maine Act was intentionally drafted to avoid challenging the Valeo decision.
- It accepts the equation money equals speech.
- It accepts the equivalence of human beings and corporations for most legal purposes relating to the mechanisms of democracy.
- It does not address most of the obstacles preventing most people from running for office. That is, it’s not about democracy, it’s about money. As to how it would affect current campaigns, consider these points.
- It does not prevent a wealthy candidate from using family or personal wealth to outspend a publicly financed opponent ten-to-one, or a thousand-to-one.
- It does not prevent a corporation from setting up scores or thousands of PACs (political action committees) each of which can collect the maximum amount of money for a candidate.
- It does not prevent dozens or hundreds of “independent” individuals or groups from spending unlimited amounts of money advocating a particular candidate or position.
The Maine Act is not only not about democracy, it’s not very much about money, as many so-called current “abuses” will continue.
What the Maine Act does do, however, under the guise of “public financing,” is to set up a system that collects money from the many, passes it quickly through the hands of the hopeful (candidates), into the coffers of the few (media corporations). Misleadingly termed “public financing,” this scheme is a redistribution of wealth in which we the people pay huge media corporations to allow us limited use of the airwaves we own.
For such a non-solution, scores of citizen organizations around the U.S. are receiving financial infusions from philanthropic foundations to pursue measures much like the Maine Act.
Many proponents of such “reform” admit that it’s “not perfect,” but assert that it’s the best we can do at this time. This “best” amounts to accepting the Valeo and FEC Act assumptions as the natural order of things. We say with a sigh….We live in an imperfect world. For reasons of money, only a small proportion of us can even think of running for office. Among those privileged few, campaigns are corrupt by any measure. But, we the people are severely limited in what we can do about it because of the Constitution. The best we can do is to limit money in campaigns enough to temper the corruption to tolerable levels but we certainly can’t do anything to chill corporate free speech.
The 1970s electoral “reforms” did not usher in an era of clean and open democratic elections by any means. It follows, then, that if we do want to work toward such a goal, we need to do something different.
If we expect to get beyond the tinkering stage in dealing with the campaign reform issue, we will have to face each of these three issues.
- People can recognize and reject the profoundly anti-democratic equation of money and speech, and identify the root causes that make it seem to be “natural.”
- People can reject the notion that persons and corporations are somehow legal or Constitutional equivalents, and that corporations have “rights” at all, other than those limited capacities specifically delegated to them by the sovereign people.
- People can debate not campaign “finance” but campaigns themselves, and decide how we the people want to hold our elections and make public policy decisions.
Re-framing the Debate
A debate that confronts the fundamental issues underlying current proposals for “campaign finance reform” would begin by recognizing that we need wholesale election reform, not just campaign “finance” reform.
The authors of the Valeo decision stated that
“[I]n the free society ordained by our Constitution, it is not the government but the people …..who must retain control over the quantity and range of debate on public issues in a political campaign.” (p. 56)
If they meant all people, and not just the self-styled elites in power at the moment, we can agree with them.
If they meant human persons, and not corporate “persons”, then we can agree with them.
What we’re seeking here isn’t changing the laws of gravity or finding the fountain of youth. It’s self-governance, by all of the people. It is self-governance, in a context of the free flow of ideas and information, sparked by debate and discussion. And it is fairness — plain, ordinary garden-variety fairness, something that any child can detect.
We seek the “unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” (Valeo court quoting NYT v. Sullivan, quoting Assoc. Press v. U.S. (1945)) Obviously this is not possible where corporations dominate the election process and election opportunities are not equal for all.
Chances are that we won’t achieve this goal by next year’s elections, but if we can’t even imagine it, we’ll never achieve it. The word campaign comes from the word for open, level field, and that’s what we’re after.
We can start with six basic democratic principles.
- Free speech is a prerequisite for democracy.
- Money is not speech.Participation in the democratic process should not in any way or to any degree be dependent on money. (Note: There is a move afoot to reverse the Valeo decision, but on grounds of “compelling” government interest, as opposed to a refutation of the money = speech equation.)
- Natural persons (citizens – the demos of democracy) should be distinguished from corporations in all laws regarding the political process.Since democracy is about people, corporations should not have First Amendment rights. (Note: In view of the fact that the legal term corporation covers municipalities, many environmental groups, media corporations, corporate trade associations, some Native American tribes, some unions, and transnational corporations, among other entities, obviously some fine-tuning is needed here. But there are ways of handling this issue so as to avoid jeopardizing the First Amendment rights of human persons to associate.)
- Public forums (such as the air waves, our newspapers and magazines, our workplaces, malls and streetcorners) should be free from corporate control.
- Election provisions should be mandatory and apply to all.”Voluntary” programs should be avoided because they allow rich candidates to buy their way out of conditions imposed on lower and middle income candidates. (We can call it the Perot-Forbes Syndrome.)
- Under no circumstances should public money be paid to media corporations for use of the air waves that we already own.
Measures to apply these principles might include the following.
- Prohibit all paid political advertisements on radio and television.
- Use the public airwaves for debate and discussion of candidates, issues, and concerns. Don’t ask, tell. Corporations are legal fictions granted special powers in order to serve a public need. Corporations that fail to comply shall have their corporate charters or certificates of authority revoked.
- Do not require monetary contributions to qualify a candidate for public financing or an issue to appear on a ballot. Signatures are enough. Current attempts to justify a dollar contribution to demonstrate “seriousness” or “commitment” parallel the arguments offered in previous eras in support of the poll tax, and the “property” requirements of 1789.
- All newspapers, magazines, and other publications that are corporations — and therefore chartered to serve the public interest (as all corporations are) — shall devote (for example) 25% of their pages to political commentary from human persons, unedited and in the order received, during the (for instance) two months immediately preceding an election or referendum.
- Workplaces, malls, and street corners should be made into free speech and free assembly zones. As a rule of thumb, any space where we “hear” corporate speech without asking for it should be a place where human persons can express their ideas freely, and have the right to hear others’ views, without fear of harassment or retribution.
- Election opportunities should be the same for all, regardless of wealth. Provisons for time off during campaigns, the guarantee of a job to return to after an election or a term served, and a living wage for both candidates and elected officials will help remove the built-in advantages that now exist for wealthy persons who run for political office.
We are a long way from the “unfettered interchange of ideas” described as desirable in the Valeo decision. There is much to discuss, debate, work out, and experiment with. But if we fail on our first try, or succeed only partially, it will be because we spoke truth to power, and not because we worked only for measures that were “achievable” but changed little.
- Donald F. Kettl, director of the La Follette Institute of Public Affairs, University of Wisconsin at Madison, 26 Jan. 1997 in the Wisconsin State Journal.
- David Hess and R.A. Zaldivar, “Is Real Reform Possible?” (Knight-Ridder) 26 Jan. 1997, Wisconsin State Journal.
- Sir John Colepepper, comparing monopolies to a plague: “Like the frogs of Egypt, they have gotten possession of our dwellings and we have scarcely a room free from them; they sip in our cup; they dip in our dish; [and] they sit by our fire.” Cited in Hermann Levy, Monopoly and Competition (orig. 1911) (Kitchener, Ontario: Batoche Books, 2001). Purportedly from a famous speech given in 1640.