Money's Polluting Effect on Politics "Speaks For Itself"


There is an ancient and famous legal doctrine called Res Ipsa Loquitur. Literally translated, it means "the thing speaks for itself." As a rule of evidence, it permits a plaintiff in certain circumstances to meet his or her burden of proof that an injury was caused by the negligent conduct of another party by use of an accepted assumption that the injury would not have occurred without the negligence. It puts the onus then on the defendant to establish a lack of causation. The doctrine is a short-cut, a judge-made fiction that has been sanctioned in courtrooms for hundreds of years.

The Thing Speaks For Itself. It's also a doctrine that fits perfectly with public perceptions of the Supreme Court's wild campaign-finance decision issued last week. Everyone knows that money pours into political campaigns. Everyone sees how and why that money is spent. And everyone sees the detritus it leaves in its wake. The "injury" to the American people, hundreds of millions of us now as plaintive plaintiffs, is obvious. We live it every day. The co-defendants are those elected officials whose campaigns and causes are funded by "corporate" free speech in politics. And yet the "judges" in our case have just kicked us out of court. 

This has occurred, in large part, because no one has yet connected the evidentiary dots and proven clearly enough that campaign money "corrupts" officials. "There is just no good evidence that campaign finance laws have any effect on actual corruption, Jeff Milyo, an economist at the University of Missouri, told The New York Times last week. His views were echoed by the Court's conservative majority. But it all begs the question. What is evidence of corruption? Is it the bag of cash in former Rep. William Jefferson's fridge? Is it the conversations that Sen. Roland Burris had with former Governor Rod Blagojevich? Is it the hundreds of millions of dollars that poured into Washington during the health care reform debate? 

The very people who have defined "corruption" under federal laws and Congressional rules are the ones from whom we are looking for evidence of corruption. No wonder five learned Justices of the Supreme Court were able to come up with a way to find no proof of "actual corruption." In this way, the drafters of the law have conspired with the interpretors of the law to reach an absurd result that hurts the rest of us. Thomas Nast had it right over 100 years ago. Only this time, it's the lobbyists and the corporations and the unions that have a stranglehold on our government. Where is their proof to rebut our well-founded presumption that Washington's governing mechanisms are broken and need a massive fix?

So long as an elected official can make a plausible argument for his or her vote--and Lord knows the special interest groups know all the arguments to make--there will never be the type of proof of the "actual corruption" necessary to enact meaningful campaign finance reform. Apart from the occasional scandal (which seems like evidence of "actual corruption" to me), there is no way to force a politician in Washington to confess to the impact big money has had on his or her campaign and tour of duty on Capitol Hill. Yet the results emanating from this chasm of the unknowable, like the poor plaintiff who needs a little legal help to prove his tort case, cry out for action. Where is the old res ipsa loquitur cheat when we need it? Why only protect the tort plaintiff and not the rest of us? 

The Thing Speaks For Itself. If money's influence on politics weren't bad and getting worse, we'd have found a path toward health care reform by now (after 50 years of trying). We'd have had effective banking regulations and Wall Street oversight that might have diminished the impact of the recesssion (or the last recession, or the one before that). Would these big solutions to big problems occur now if the campaign taproot were cut? I don't know. But I'd sure like to find out. Wouldn't you?

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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