I’m no expert on campaign finance law, and I don’t know the degree to which Citizens United has tilted the electoral landscape (Sean Trende has argued it hasn’t been that consequential), but among the many arguments for not owning a TV is the surfeit of political advertising thereon. The indispensable Bridge magazine (indispensable for Michiganders, that is) has a recent article on campaign spending in MI, wherein spending on the governor’s race and the senate race will top $100 million. I’m not as worked up about campaign spending as a lot of people are, so long as there is sufficient transparency, but the amount of “dark money” poured into the Michigan campaign is deeply concerning. This money is dark indeed, for the contributions can be made without disclosure.
It is virtually impossible for the average voter to trace the origin of all this money, nor is it really possible to identify the reasons why someone who is not a citizen of this state would be so concerned about the outcomes of our elections. The assumption that money buys influence may have some truth to it, although likely not as much or not as significantly as people may think, but it’s safe to assume that no one is going to spend $5 million on something unless they believe they are getting something worthwhile in return.
An excess of money into the campaign system not only further tilts the political system to the advantage of those who are making such large contributions, but deepens the sense of drift many voters already experience – the sense that something is going on of which they are only dimly aware and over the outcome of which they have no control. Walter Lippmann once compared the modern voter to a spectator in the back row of a foreign movie: you know something is happening, but you don’t really know what it is, and so it deepens this sense that you are being carried away by a powerful tide. The “omnicompetent” citizen becomes a myth, and perhaps a useful one to the power brokers who have the means, or so they believe, to move the tide to their favor.
One of the central problems with money is that it is unrooted. It flows into the cracks and crevices of social life; it is a giant wave which sweeps away everything in its path, including local autonomy and deliberation. It now becomes possible for moneyed interests who have no connection to a place to interlope in direct and indirect ways. No offense to the Koch Brothers: but what gives them the right to tell us Michiganders how to vote for governor and senator? What business is it of theirs? And if they think it is their business, then come and make the argument to me. I take it to be a fundamental principle of social life to stay out of other people’s business univited, but if you stick your nose in there you better be a) prepared to explain why you think it’s necessary, and b) prepared to have it punched anyway. Now, alas, the average voter is reduced to throwing punches at phantoms. Or worse, the average voter has become so enervated that he or she no longer has the energy to throw a punch.
Money is a shield influence-peddlers can hide behind, just as they hide behind the 1st amendment. Whatever the 1st amendment speech clause does, however, it is not intended to be a barrier to conversation, or a means for making speech less accountable. But under current campaign finance law that is exactly what it has become. Individuals can spend obscene amounts of money and, when called to account, invoke the first amendment as insulation. I understand the reasoning behind the expression “money is speech,” but also understand the noxiousness of it. It is speech in only one of its dimensions, as a mechanism of persuasion, but not as a medium of social intercourse. This is in part because money can flow only one way, while speech is reciprocal. Speech connects citizens to each other; money-as-speech divides them.
While money is used to hide speech rather than express it, it at the same time corrodes speech. Of nothing is Orwell’s claim that the bad use of language must necessarily lead to bad politics, and that bad politics requires the corruption of language, more true than the campaign process. The ads are designed to confuse voters, to impugn unjustly someone’s reputation, to make the lesser seem the greater and the greater the lesser. It is the rankest demagoguery. It is choreographed deception, the lie that begets only more lies. In our day, Orwell said, language is largely used to defend the indefensible. Whatever else “freedom” of speech might mean, it can’t mean that people – our leaders, no less – get to lie with impunity.
And we take it. We know none of it is true, or is only half true, but we blithely accept it as the price of doing business, with little attention to how such systematized deception corrupts and corrodes our public life. But there is every reason to assume it creates greater cynicism, and thus disengagement.
Again, the money-brokers have no interest in the truth. Their interest is only in outcomes. Because they don’t live with the people they’re trying to “persuade,” it matters not to them whether we regard them as liars. They have no stake in our lives, and no capacity to experience the shame that most of us might experience if we’re called to task face-to-face. There are no reputational interests at stake. They are shadowy figures who are never struck by the light, who never have to meet their accusers, and are never made to account, except in the most narrow legal sense.
So let’s start by changing the law. Here’s a proposal: money may not be spent on campaigns within a state that does not originate inside that state. I can see no constitutional or legal reason why states ought not be allowed to place such restrictions on campaign spending (it would be akin to qualification requirements discouraging carpetbagging). The devil is in the details, I realize, but no citizen of any state should make peace with individuals financing state campaigns when those individuals don’t live here, and whose interests are not necessarily the best interests of those of us who do.
Clearly federal attempts to manage campaign financing have largely resulted in failure. The history of campaign finance reform in Congress is the history of unintended consequences. Every time Congress tries to restrict the flow of money, the actual flow increases. Members of Congress who, almost by definition, have benefitted from the current system are unlikely to have the incentive to make truly substantial changes to it.
Why not use the tools of federalism to make some inroads into the money problem? According to the Constitution, states have the power to regulate the times, places, and manner of elections. If the states would stipulate that money can be given to campaigns within the state only by citizens of the state, it would lead not only to greater transparency, but would also invigorate the democratic sense of place as well as the liberty-protecting principles of federalism. It’s a recommendation so obvious that it has virtually no chance of success.
The biggest source of money in political campaigns is the federal budget. It makes expenditures like those of Soros and the Kochs look like chump change. Yet you seldom see people who want to get money out of politics working to decentralize our government and reduce federal expenditures.
As to what business I have telling Minnesotans how to vote, it was by their letting Al Franken steal an election in their state that the human-rights abomination known as ACA passed. We’re all in it together. State-level governor and legislative races in other states may help determine whether an election is stealable. If we want the various states to be have their politics to be more independent of each other’s, we need to decentralize and localize. Subsidiarity, please.
Speaking of decentralizing, elections, and being in this all together, I am now excited. I just now came across a list of all the polling places in Wisconsin. It’s a spreadsheet file that may have been created just a couple of weeks ago.
This is important to me because I’ve been trying to find all the locations of town halls (or their equivalents) in Minnesota, Wisconsin, Michigan, Illinois, Ohio, and other states. There are thousands of them, and so far I’ve ridden my bicycle to only about 122 of them (in 4 states) where I’ve taken photos. I don’t know if it will be possible for me to visit them all, but that’s partly because I don’t know for sure how many there are. It’s not easy finding them all.
Michigan’s are easy, because the Michigan Township Association tries to keep its web site up-to-date with all of this information.
Some of the other states with strong township government have directories that list all of the townships that have web sites, but that accounts for only a minority of them, and not always the most photogenic ones.
One source that has been very helpful is lists of polling places. I do not know of many township halls that are not used for elections. It used to be that the county clerks would publish lists of polling places, often on the web in addition to other places. The problem is that this year, many states are starting to use a different method to help people find out where to vote, which has supplanted these lists. They have online web sites where you can enter your name and address, and then it’ll tell you where to vote.
The problem with this is somewhat like the problem with contributing to campaigns in other states. It doesn’t tell me where OTHER people vote. What business is it of mine where other people vote? Well, I’ve already explained my project, but it applies in other cases as well. Poll watchers, maybe?
One problem with these web sites (as well as with some recent changes from polling places to voting centers in Indiana) is that it makes election day less of a “we” thing, and more of an “I” thing. Absentee ballots do that, too. There is a loss of a sense of community when we no longer go the polls and run into our neighbors (or in my case, my pastor, who tells me that he’s seen no right-wing conservative environmentalists on the ballot, so I can turn around and go home). We vote in secret, but there is something about our all doing it together at the same place that can help us treat each other with more respect. I guess we would still run into our neighbors even without the lists of polling places, but there is something about our knowing even beforehand that this is the place where WE vote.
All is not lost for my project. Many of the old lists of polling places from previous elections can still be found online, though it sometimes takes more than the usual amount of googling to find them. Some counties still publish the old style lists along with links to the new personalized, impersonal web sites. And one Wisconsin county actually has a directory that gives the address of every township hall.
I’ve also impersonated other people — put in their name and address on the state web site to find out a polling place. That seems kind of creepy, though, and I’ve only got up the nerve to do it twice. I used the name of a local business owner in one case, and in another where a name was not required I used the address of the township clerk. (It’s usually possible to find lists of township officers online, often with their home addresses.)
But just tonight, after trying in vain to find a comprehensive list for Jackson County, Wisconsin, I found a spreadsheet that lists all the polling places in Wisconsin. Jackpot! I don’t know anything about its origins, but they seem to be recent. Maybe it’s the case that I’m not the only person who thinks it’s his business to know where other people vote. Anyhow, I’m glad to see that voting places in Wisconsin are once again matters of community knowledge and not just personal, private matters.
Sorry Jeff, but your suggestion –“Here’s a proposal: money may not be spent on campaigns within a state that does not originate inside that state. I can see no constitutional or legal reason why states ought not be allowed to place such restrictions on campaign spending”–is a constitutional and legal nonstarter. As long as the “speech is money” argument is an accepted part of our body of constitutional law (and that first came to the forefront in Buckley vs Valeo in 1976, not Citizens United), we won’t get around that by discriminating against non-citizens of our fair state. As much as I would like to be able to quarantine speech from a boneheaded Hollywood no-nothing actor or TV personality, I’m confident the courts would swat down any attempt to embargo their money.
As long as the “speech is money” argument is an accepted part of our body of constitutional law (and that first came to the forefront in Buckley vs Valeo in 1976, not Citizens United), we won’t get around that by discriminating against non-citizens of our fair state.
Right. In my view, Citizens United was a terrible and profoundly anti-democratic (as well as anti-republican) ruling, but that’s only because it helped bring to fruition the individualistic principle which Buckley v. Valeo enshrined so long ago. With that ruling, spending money–not just acts of speech, actual occasions of actual argument and persuasion, but rather the whole capitalist superstructure which allows all the propagandizing nonsense to occur on every level–was turned into a First Amendment right that cannot be fundamentally abridged. A horrible ruling; certainly (in my view anyone) one of the very worst in the whole history of the Supreme Court.
If you really want to reduce the influence of money in elections, here are a couple of reforms I’ve been advocating since the early 80s.
1. Abolish constituent services in the U.S. Congress. Any Congressman who intercedes with an administrative agency on behalf of a constituent goes directly to jail. Yes, constituents should make their problems known to their Congresspersons. But the result should be the legislating of administrative and budgetary reforms that help everyone, not just doing favors for certain persons. We used to have a Congressman who was anti-business, but helped the Kellogg Company in its problems with the FTC. He was anti-military, but helped keep the local ANG base open when it was on Barry Goldwater’s hit list. He was so environmentalist that Ed Asner supported his campaigns, but at election time would distribute a sheet listing all the businesses he helped with their EPA problems. Abolish constituent services, and you abolish that type of corruption.
2. If any member of Congress so much as hints that s/he was responsible for federal spending in his district, off to jail s/he goes. This means, among other things, that it should NOT be the privilege of a local Congressman to announce new federal spending in his district. Administrative agencies should be funding programs based on their merit, not on the basis of political clout. If that isn’t happening, Congress should do its duty and cut budgets or otherwise reform the agency. But it won’t do that when Members of Congress use spending by those agencies to influence their re-elections. (This also happens at the local level. The leftwing Kalamazoo Gazette once failed to endorse a local liberal state legislator because she didn’t do enough to bring pork home to her district. I no longer read local newspapers, as I feel it is socially irresponsible to pay money to support their rabid leftwing activism, but when I last did they were still making endorsements on the basis of who brings home the pork. That’s the real money that influences local election. McCain-Feingold did nothing to address that problem.)
I realize the enforcement methodology needs work and may run into constitutional problems (if that still matters). So lacking reforms like this, about the only thing we can do to get outside money out of elections is to reduce the size and scope of government.
Having taught Con Law, I am familiar with Buckley v Valeo and its holdings on campaign finance. It’s an odd case for all sorts of reasons, not least because the law in question was so badly constructed (it was a federal statute, passed over Ford’s veto, that invoked the times, places, manners clause when clearly that clause applied to the states and not the federal government). The court has taken a pretty broad view of Buckley subsequently, but – as it has done with religion cases – there is nothing to prevent the court from attempting to solve its own problems by interjecting federalism into the proceedings.
Keep in mind also that Buckley upheld the idea of limits to contributions to individual candidates. The hole in the system is independent expenditures. Sean Trende has argued that McCain-Feingold is more responsible for the increase in independent expenditures than Citizens United is. Furthermore, the court argued in Buckley that the government did have a compelling interest in disclosure as a way of avoiding corruption. My claim here is that there is nothing in the Constitution that would prohibit states from insisting on residency requirements for spending, and I think stare decisis is fungible enough, and the case law ambiguous enough, in this instance that the Court could uphold such restrictions
Fair points, well made by the “Perfesser.” Buckley was discussed extensively in my Con Law class and you’re right–its a weird case, with many issues and sub-issues. Worst of all, it was a per curiam opinion with the justices unable to agree on reasoning, only result, making it maddening to understand. Maybe a later Supreme Court decision will clarify the “money as speech” aspect but right now I don’t see courts buying the suggestion that the good folks of our state can allow unfettered spending by Michiganians (not Michiganders–please, don’t let me get started on that), while prohibiting it for other US citizens. Free speech–even for non-residents of Michigan–doesn’t end at the California border. Courts are extremely wary of limiting speech especially when it touches on the political process–and well they should. The First Amendment doesn’t mean much if a hedge is placed around the most controversial issues. While I sense that the current understanding of “money as speech” is not what you wish it to be, you can only do legal battle with the weapons we have, not those you wish we have.
There are at least four issues presented here: the money as speech argument, state control over elections, the tension between good policy and practicable solutions, and the proper nomenclature for Michigan natives.
It’s really the third and fourth issues which are at debate here. Does “free speech” end at a border? Well, in a certain sense, yes, if we don’t think about these things abstractly, as jurists are wont to do. There are practical limits to speech, and those practical limits help define and enrich communal life. In that sense, money, by removing the practical limits, isn’t really speech. But I understand the point that it’s essential to “getting a message” out there. Still, it’s not speech simpliciter. But the Court makes no effort to think about what money, or speech, really is. I suppose I shouldn’t hold it against them that they’re not philosophers, but philosophers ought not be silent simply because the Court has ruled. In any case, healthy social interaction is conditioned upon distinguishing good speech from bad – this is why we teach our children not to lie, for example – and the law ought not corrupt such distinctions.
As to the practical part, I think jurisprudence on the religion clauses in the last 15 years indicates that the Court is willing to take an approach to knotty first amendment issues that is more deferential to the principles of federalism. Baats is certainly right as regards the likelihood of the Court taking such a path, but I just don’t see why it couldn’t work in principle.
As to the obviously more important disagreement over what to call a Michigan native: I’m all in on Michigander. I’m even willing to call my wife a Michigoose. So … I will get you started on that.
Your wife is a saint. At the very least she should be beatified.
Why do people keep saying that? Sometimes, they don’t even know her and they say that. I don’t get it.
It should be mentioned that when it comes to outside money crossing the borders to influence elections, Vladimir Vladimirovich Putin is very much opposed to outside money coming in to finance the political campaigns of opponents to the ruling party, and has gotten laws passed to that effect. Nor has he done anything to stop the use of government money to finance elections of the ruling party. In other words, pretty much the same issue there as here. So the result is that he is free to cross borders and interfere with the politics of countries not yet under his direct jurisdiction.
I know your wife. More importantly, I know you (even better). That’s sufficient to establish that she’s a saint.
When the government is handing out trillions of dollars each year, are we really surprised that there are folks willing to spend millions (or tens of millions) to get a seat at the table? Willie Sutton had it all wrong. Robbing banks is for suckers. Politics is where the real opportunities lie.
I guess I don’t see why there aren’t interstate commerce problems with your proposal, but then, I’m not a lawyer. Could you also ban out-of-state companies from advertising their products in your state? Given that the activity of flag-burning is protected speech, as is the depiction and sale of the most vile depictions of violence and sex, as long as they are “only” simulations, I’m not quite sure why saying “Do/Don’t vote for Congressman Jones” on television should be singled out for special opprobrium. Seems to me that’s the sort of speech that should be due the very utmost deference and protection.
“It is speech in only one of its dimensions, as a mechanism of persuasion”
No. Advertising is only informational.
Acme Inc. advertises Soapi so that JP is aware of its existence and to drive demand enough for Meijer’s Thifty Acres to stock it. JP might try a 5 dollar flyer on Soapi and like it, so ensuring his continued loyalty until he learns of Bubbly on his TV set and takes another flyer….
JP does not elect to buy more expensive items like his Chevvy or Ford based on the advertisers’ puffery, rather the ads are directed at existing owners to assure them of the wisdom of their purchases; else their murmurs about their 15 year old clunkers might seem to be reasonable instead of odd and unfamiliar stuff to say in the face of claims to the contrary by TV.
Money in politics and political ads are different information. They should reflect research on the candidate or the proposal and then inform voters about issues that no one else will air. and the more we know about these fellows (myself excluded, of course) the less cuddly they become.
Sheltered academicians assume that advertising is persuasion, that folks will change thinking and spending based on repeated jingos. Ads are really just ways of expanding the field of knowledge, of possibilities, and in capitalistic societies, the competition that maximizes efficiency and lowers costs.
If you want to experience the absence of ads, go to Portland, Oregon. They strictly regulate road signs; you cannot find or compare stores, gas stations or motels. Any business can charge what it wants because competitors are invisible to the public. It was one of my most unsettling experiences and relieved only by going back across the bridge to Washington.
Besides, we don’t have a TV and so lack the visceral animus against what some seem to resent. The few snippets that I see are mostly funny and informative.
Sorry, the crack about Koch industries, who rank 42d on the Center for Responsive Politics rank-ordered list of incorporated campaign donors, is a tell.
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