The Foolishness of Campaign Finance Reformers

By Wendy Kaminer
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Right-wing activists aiming to amend the Constitution have some company on the left. Advocates of campaign finance restrictions, outraged by the Citizens United decision, have proposed a constitutional amendment allowing Congress and the states to regulate political speech "by any corporate entity." The breadth of this proposal is, well, breathtaking: it would permit the criminalization of political advocacy (including criticism of political candidates) not just by presumptively big bad corporations, but by non-profit advocacy groups, large and small; and, its intended effect on media corporations is unclear. The amendment includes a provision stating that it "shall not be construed to abridge the freedom of the press," but given the insistence of reformers that a ban on expenditures is not a ban on free speech, you have to wonder what they mean by "freedom."

You always have to ask what they mean by "press." Corporate speech can't be regulated effectively without regulating the media, especially in an age of corporate conglomeration, when behemoths like GE buy and sell major networks; and, from a liberal perspective, the single, most influential mega wealthy corporation disseminating misinformation and corrupting the political process is Fox News. If reformers somehow succeeded in imposing a ban on independent corporate expenditures that exempted media corporations, their success would be self-defeating: it would effectively enhance monopolies already enjoyed by Fox and other corporate mainstream media. Given these practical realities complicating the drive to restrict corporate political spending--the ascendence of highly partisan corporate news operations, the changing nature of media, and the media functions performed or acquired by large corporations or advocacy groups that rely partly on corporate funding (like Citizen's United, recently granted a media exemption)--it's hard to take reformers seriously when they profess their commitment to a free press.

Just listen to the Huffington Post crow, "Fox News Lawyers Up" in response to a complaint against it filed with the Ohio Elections Commission by the Democratic Governor's Association for allegedly violating state campaign finance laws. "Lawyers Up?" What was Fox News supposed to do--not hire lawyers to defend its rights as a media corporation, not respond to a frivolous complaint? Fox's alleged offense was running a chyron advertising gubernatorial candidate John Kasich's website during an interview with him on O'Reilly. According to the DGA complaint, this constituted an illegal contribution in kind to the Kasich campaign.

It's not surprising that the DGA filed this complaint, but it is still a bit of a shock since, as Fox's response points out, "there is no doubt that FNC fits the traditional definition of a press entity, while the O'Reilly Factor clearly fits in the category of shows involving commentary and interviews with public figures... it is hard to seriously argue that interviewing a candidate for office is not a legitimate press function." Fox also stresses that "the complaint does not allege or present any evidence that FNC is owned or controlled by a political party, political committee, or candidate," and liberals who consider the Republican Party an arm of Fox News would at least have to concede this point.

But the crusade for campaign finance reform is not distinguished by logic, intellectual honesty, or even an understanding of the complicated legal history and practical realities of campaign finance. Generally (I've observed in discussions and debates), many advocates of reform don't seem to realize that restrictions on corporate political expenditures have applied, and, pursuant to the proposed constitutional amendment would apply to their favorite not for profit advocacy groups, as well as "big bad" business corporations. They tend to exaggerate the allegedly unprecedented "floods" of corporate money likely to be released by the Citizen's United decision, which struck down a ban on election season corporate advocacy financed by general treasury funds; it did not address the vast amounts of money spent by independent tax exempt groups, like 527's (and it's hard to predict whether corporations will want to spend huge amounts of general treasury funds on campaigns). Many advocates for reform also tend not to distinguish between limits on direct contributions to candidates from individuals or corporations (which remain subject to regulation) and limits on independent expenditures by corporations--which is a bit like not distinguishing between giving a scholarship to a particular student and (without consulting any scholarship recipients) buying ad advocating for or against scholarships in general.

Or, consider reformers' insistence that "money isn't speech." Put aside the fact that liberals never complain that money isn't abortion rights when they lobby for medicaid funds or that money isn't the right to an attorney when they lobby for indigent defense funding. Instead, simply remember reformers' claim that money isn't speech when they explain that restrictions on corporate expenditures are essential to democracy because monopolizing wealth enables corporations to monopolize speech. In other words, they implicitly argue, we need campaign finance restrictions because money is speech. But explicitly conceding that money is speech would require them to acknowledge an intent to limit First Amendment rights, to engage in arguments about the value of corporate political advocacy, and present compelling reasons for criminalizing it. That's a debate advocates of reform want very much to avoid, which is why they also attack the notion of corporate personhood.  

Like the slogan "money isn't speech," "corporations aren't people" endowed with individual rights, has a certain visceral appeal--especially when you don't acknowledge that corporate personhood is a metaphor. And, like "money isn't speech," the insistence that "corporations aren't people" is employed selectively: The 4th and 5th amendments explicitly apply to "people" and "persons," but I have yet to hear any liberal advocate of campaign finance reform argue that the government may subject corporations to unreasonable searches and seizures or prosecutions devoid of due process.

Still these slogans are effective in no small part because they frame the movement to restrict corporate political speech as a populist crusade. (The progressive website promoting a constitutional amendment is called freespeechforpeople.org.) Yet this supposedly populist movement has a paternalistic heart: The actual effect of political advertising (a primary target of reformers) is difficult to measure. Sometimes it works and sometimes it doesn't; just ask Meg Whitman. But reformers--who don't seem to believe they base their own votes on political ads--assume that many voters are stupid or ignorant and easily manipulated by advertising. Whether or not this assumption is true, it belies the image of campaign finance reform as a populist crusade; it's a crusade that mistrusts the populace.

And, however stupid voters may be, they're surely no stupider than progressive reformers who want to repeal or amend the First Amendment. Reformers are apparently stupid enough to believe that Congress and state legislatures, increasingly dominated by right wing Republicans (who will exert considerable control over redistricting and appear poised to take over the Senate in 2012) would enact an amendment that would advance progressive policies. Prominent progressives, including editors at The Nation, are even willing to support the constitutional convention so devoutly desired by the far right. "The Nation is committed to (this) struggle as one that is in the noblest traditions of this magazine," an editorial proclaims. "We will do everything in our power to further it, with no quarter for cynicism or compromise," and, they might have added, "with no reality testing." It's not cynicism that desires a progressive political movement to display a minimum of political intelligence.  

This article available online at:

http://www.theatlantic.com/national/archive/2010/12/the-foolishness-of-campaign-finance-reformers/67571/