For anyone who believes that all people are created equal and entitled to a government of, by and for them, it is a dark moment. The Supreme Court's elimination of limits on corporate political speech guarantees that democratic power will now be directly sold to the highest bidders.
There are only two intellectually honest ways to defend the decision. The first is to argue that there should be no restraints of any kind on any speech in any situation. Supporters of the Supreme Court's decision have not made that argument, nor will they. Nobody wants to be trampled during the proverbial joke cry of "Fire!" in a crowded theater.
The second honest defense is to consider people to be fundamentally unequal, deserving of different rights, which justly are distributed to whoever can afford them. This is another way of saying, "There is nothing wrong with slavery; after all, a slave can always buy his freedom."
That being difficult to say in public, or even to acknowledge in one's own soul, supporters of the Supreme Court's decision contort logic, common sense and common decency to rationalize the transfer of power from poor to rich. Many of their rationalizations are contained in an essay by Bradley Smith, a Capital University Law School professor, in National Affairs.1
According to Smith, campaign finance limits are tainted by a regulatory version of original sin: the roots of reform are impure, so its fruit is forever poisoned. "Far from being born of lofty ideals, federal campaign-finance regulations were, from their inception, tied to questionable efforts to gain partisan advantage," he writes. Implied is that opposition to regulation was non-partisan — which is laughably wrong, but would be irrelevant if true. Partisan maneuvering is intrinsic to multi-party politics. Smith may as well decry America's founding by anti-Tory native landowners, or support for emancipation by northern textile exporters tired of competing with cheap slave-made linens.2,3
Smith's disingenuousness allows him to strike a pose of righteous lamentation. He regrets that early reforms "did little to stem the overall flow of money into campaigns, due to weak enforcement mechanisms and various loopholes that could readily be exploited." Neither did the Federal Election Campaign Act of 1972, followed by McCain-Feingold in 2002, have their intended effect. Incumbents who once outspent challengers by half now spend twice as much, or more. Writes Smith, "The effect of campaign-finance regulations has therefore been to help the people who passed them and to strengthen special interests, rather than to cleanse American politics of the influence of self-interested factions."
Such cleansing is not the purpose of campaign finance regulations. It's not possible. The purpose of regulation is to minimize imbalance — a subtle but important distinction. Our Founding Fathers understood this: they knew politics to be inherently dirty, and designed a political system with checks and balances that contained and channeled the corruptions of its members. In the right circumstances, good things can come from a clash between competing self-interests. Conservatives preach this when discussing markets, in which the wealthy have already prevailed — but in politics, where public interests are not entirely aligned with their own, they conveniently develop amnesia.4
Of course, those who think corporations and unions should be able to spend unlimited amounts of money to control political offices would argue that competition is precisely what they are supporting, and that regular citizens can pool their funds to compete with wealthy corporations. This is risible. Ten percent of Americans own one-half of its assets — an income discrepancy unprecedented in modern history, and one that is widening at ever-faster rates. The majority of financial power is concentrated in a tiny minority; conflating finance with politics logically expands the inequality. Smith makes no mention of these numbers, but argues that political power is now distributed unequally because campaign finance limits "elevate those with more free time — such as retirees and students — over those (like most working people) who have less time, but more money." To consider these two inequalities comparable defies reason.5
Smith is at least right that the influence of special interests on American politics has expanded in recent decades, though he fails to consider whether in the absence of campaign finance law it might have expanded even more. This failure is unsurprising: whatever motivates Smith and the conservative Supreme Court majority, it is clearly has nothing to do with democratic ideals or the public interest. If it did, they would argue for improving McCain-Feingold and the FEC restrictions, which at least recognize that corporate and public interests are not necessarily synonymous, and that the "marketplace" is not an ideal space for political debate between supposed equals.
Instead of improving the system, they call for its destruction. Instead of ending existing injustice, they would fuel it. Some people have said that American democracy in the corporate age is on life support. The plug has now been pulled.
1. Overtly absent from Smith's essay — though implicit in its every word — is the assertion that individuals and corporations are equivalent entities. That they are not is almost paralyzing in its self-evidence. As an exercise, I find it instructive to imagine telling Thomas Jefferson that the East India Company deserved the same rights as he.
2. An obvious counter to my example of Emancipation-era northern textile manufacturers is that they show how businesses can act in good conscience. (Smith gives another example: at the beginning of the 20th century, many corporations opposed segregation because they "did not want to pay for two sets of rail cars, double up on restrooms and fountains, or build separate entrances for customers of different races.") But there's no doubt that corporations can behave well, and cherry-picking examples of either good or bad behavior is beside the point. People should not be forced to rely on corporate grace, and they need political recourse when corporations act against the public interest.
3. I've gone heavy on slavery-referencing examples, perhaps to balance Smith's playing of the race card. The aforementioned corporate champions of cost-efficient racial equality were, he notes, the enemies of South Carolina senator Ben Tillman, an early campaign finance reformer and segregationist. It's reasonable for him to mention this, but also a handy debater's trick: "You support campaign finance reform? Did you know it was invented by racists?"
4. There's an echo in this rhetoric of that ancient political refrain: [Insert state or national capital] is abominably corrupted by backroom deals and insider business-as-usual, and it's time for [insert political candidate] to clean up and restore government to the people. Every now and then someone means it, but usually it's just another sales pitch by someone happy to conduct their own backroom business. But this is more than a cheap political ploy: in the hands of a conservative bent on dismantling government and turning its remnants to corporate service, it's a path to destruction.
Thomas Frank writes eloquently on the infiltrate-loot-destroy tactics of modern conservativism. It sounds so awful and so cynical that one wonders if it's really a conspiracy theory — and then one is presented with the fact that, from 2000 to 2005, under President George W. Bush, Bradley Smith chaired the Federal Election Commission.
5. Speaking of "defies reason," it's worth contemplating the trajectory of Smith's argument: campaign finance reform is a failure because it's allowed wealthy special interests to flood the political system with money. However, money is not actually important to deciding electoral races. Campaign finance reforms have also favored people who have little money, but lots of time — so eliminating reforms will restore balance.
Any combination of these statements is self-contradictory. That Smith describes the arguments of his opponents as Orwellian is, well, Orwellian.
Image: Sjoerd van Oosten