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Citizen's United is part of the problem, but it's not part of the answer

Some powerful Democratic senators are trying to do something about the Citizen's United decision. I think that's a mistake.

Democratic leaders in Congress unveiled proposals Thursday that would limit the impact of a Supreme Court decision allowing unfettered corporate spending on political campaigns.

Sen. Charles E. Schumer (N.Y.) and Rep. Chris Van Hollen (Md.) called for a ban on companies with more than 20 percent foreign ownership, government contractors and bank bailout recipients from participating in U.S. elections. They also want to require companies to inform shareholders about political spending, and to mandate that corporate chief executives appear in any political advertising funded by their companies.

It's not that these rules are bad. But they're primarily symbolic. Foreign companies aren't likely to buy American elections. The bailout will be over soon, so that element won't much matter. What you want to do isn't chip away at the edges of the Citizen's United decision, but use it as momentum to erect a whole new public funding structure. The energy and organizing that might go into the Schumer legislation could do a lot more good pushing the Fair Elections Act.

By Ezra Klein  |  February 12, 2010; 3:53 PM ET
 
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Comments

I don't think that the Fair Elections Act will work.

Incumbents use campaign financing to build a *war chest* as a "signal" to discourage potential challengers.

I think that Senator Durbin is terrific but if he wants to lead campaign reform he should dismantle his Leadership PAC (which he will use to "bribe" his colleagues to elect him as the next majority leader).

Posted by: msa_intp | February 12, 2010 4:23 PM | Report abuse

I think the biggest impact would be the government contractors, not the other two categories.

It's not just primary Defense Contractors, checking out the to 100 contractors in 2009 ( http://www.usaspending.gov/fpds/tables.php?tabtype=t2&subtype=t&year=2009 ).

In terms of the health care debate, both Humana (#18) and Pfizer (#90) are on that list.

This isn't to say I disagree, going for Patriot dollars or some other new public funding scheme is the right way to go. But I think banning contractors would have a effects beyond symbolism. If nothing else, you might end up with many big companies with small government contracting businesses getting out of the sector entirely if they want to do campaign speech.

Posted by: greg_sanders | February 12, 2010 5:09 PM | Report abuse

msa: is your thought that FENA won't *work* or won't *pass*? Given that the current (lack of) campaign finance regulation allows incumbents to ward off challengers by building up impressive war chests, I can see how those incumbents have strong incentive not to *pass* it (insofar FENA would largely deprive them of this weapon). But that's independent of whether FENA would *work*. Or is there some reason to think that FENA wouldn't, in fact, limit the effectiveness of warchests?

Posted by: RyanD1 | February 12, 2010 5:15 PM | Report abuse

We have the equivalent of the Fair Elections Act in place for presidential elections, and it's failed. President Obama disavowed the publicly-funded system because he could generate more campaign money outside it, and with that precedent set, no presidential candidate will ever again accept the public-funding restrictions. Ezra's suggestion that we expand a policy that has been proven not to work is just not reality-based.

Posted by: tomtildrum | February 12, 2010 5:37 PM | Report abuse

Grow up, Ezra. Schumer is a big beneficiary of Wall Street campaign funds and is known for his reluctance to raise taxes on the people running private equity firms and hedge funds, hence watered-down legislation.

Posted by: goadri | February 12, 2010 5:54 PM | Report abuse

The main problem with the Schumer/VanHollen bill is the same as the problem with the law that was struck down in Citizens United: it would infringe freedom of speech and press. Where does it say in the First Amendment that "the freedom of speech and of the press" doesn't extend to companies with 20 percent foreign ownership or to anyone with a government contract?

Posted by: wumhenry | February 12, 2010 6:14 PM | Report abuse

RyanD1: Let’s put on our critical thinking caps (in the sense of Karl Popper’s critical rationalism).

To what “problem” is FENA the solution?

If it is to solve Lessig’s problem of “institutional corruption,” it *won’t work* because it does not change the incentive structure in which members have to fund-raise for their party in order to be a “player” (e.g., committee chairman, assignment on influential committee). [Per Robert Caro, this is how LBJ rose to become the "Master of the Senate."]. Like in that wonderful TED video that Erza posted at lunch today, it appears that Members of Congress are trapped in a "prisoners dilemma."

That said I think that it *may pass* because folks like Lessig and Erza are [uncritically] endorsing it.

Again, what “problem” is FENA trying to solve?

Is FENA the “best” way to solve that problem?

And is it the “real” problem that needs to be solved?

Posted by: msa_intp | February 12, 2010 6:27 PM | Report abuse

Given the current Court, I would recommend against any push for major election reform until we have another conservative retirement (unless you want to go the route of a constitutional amendment, which will take a lot of time and is probably impossible). There's a good chance any major legislation would be torn apart by the courts, no matter how carefully crafted.

I do like the idea of making CEO's appear in the commercial. If nothing else, it would be a little bit humuliating and hilarious.

Posted by: Levijohn | February 12, 2010 7:45 PM | Report abuse

where in the Constitution does it applies to non-persons. The Constitution clearly states that it is a document describing the relation of people and government. aggregates of people are extended privileges from the people through the government. The people through their representative government get to decide what privileges are extended to corporations and how those privileges work. Unless of course 5 bought and paid for corporatists get on the Supreme Court at the same time

Posted by: williamcross1 | February 12, 2010 7:46 PM | Report abuse

tomtildrum: "We have the equivalent of the Fair Elections Act in place for presidential elections, and it's failed. President Obama disavowed the publicly-funded system because he could generate more campaign money outside it, and with that precedent set, no presidential candidate will ever again accept the public-funding restrictions"

But if we made the publicly-funded system robust enough, then candidates will have an incentive to opt-in. Of course a candidate who can raise $600 million won't opt-in to a system that will provide only $83 million. But if the system provided $500 million, the candidate would probably take the deal (even though it's less money, it eliminates the need to spend time and resources on fundraising).

All candidate (presidential, House, Senate, including primaries), national party committee, and 527 expenditures last cycle came to about $8.78 per eligible voter per year. So it's pretty clear to me that it wouldn't be hard to provide candidates with more than enough public money to run their campaigns.

To paraphrase a line from Butch Cassidy and the Sundance Kid: if they paid me that much to stop robbing them, I'd stop robbing them. If we make it worth a candidate's while to stop taking private money, then they'll do so.

By the way, Obama was a cosponsor of public campaign financing when he was a senator. I believe he still supports it and would have accepted public funding in the presidential race if that system was sufficiently robust. But since it isn't, I can't really complain about his decision.

Posted by: dasimon | February 13, 2010 12:06 AM | Report abuse

msa_intp: "If it is to solve Lessig’s problem of 'institutional corruption,' it *won’t work* because it does not change the incentive structure in which members have to fund-raise for their party in order to be a 'player'"

I'm not sure if "institutional corruption" means incentives to be a "player." The "problem" as I see it is the dependence or perceived dependence on money from certain interests to obtain or retain one's seat. By providing sufficient public money to run a robust campaign, we provide candidates and officeholders with independence from those interests--and independence from national party committees as well.

Sucking up to leadership to advance is prevalent in any system. But at least members won't have to do so in order to get reelected. That would be a big improvement, and well worth the expense.

Posted by: dasimon | February 13, 2010 12:10 AM | Report abuse

dasimon: Here I think that Lessig needs to to Toyota's "Five Whys" root cause analysis: Why is Congress so *dependent* on fund raising?

When I did that exercise I came up with career advancement (Leadership PACs), which in turn depends on majority party control (hyperpartisanship).

Correct me if I am wrong but there is a strong correlation between the ability to fund raise *for colleagues* -- and chairmanships and/or assignments to key committees. [Per Robert Caro, this is now LBJ became the "Master of the Senate."]

I would be interested to see others' Five Whys root cause analysis of Lessig's dependency.

Posted by: msa_intp | February 13, 2010 2:24 PM | Report abuse

"Why is Congress so *dependent* on fund raising?

"When I did that exercise I came up with career advancement (Leadership PACs), which in turn depends on majority party control (hyperpartisanship)."

But that assumes that everyone is obsessed with career advancement. Maybe a lot of members are only, or primarily, concerned with getting reelected (after all, you can't be in a leadership position if you lose your seat).

Moreover, Lessig doesn't pretend that citizen-financed elections are a cure-all. There will always be partisanship and nutcase ideologues. But the benefit is that when Congress does "get it wrong," we can attribute the cause to ideology or stupidity, and not the money. As he says, it's about trust. Those who opt-in to the system will have that trust. Those who remain dependent on private funds for themselves or for colleagues to advance their own careers will not have that trust.

Again, the question is not whether citizen-financed elections solve every problem. The issue is whether the benefit is worth the cost. Now, there may be ideological differences about allowing Medicare to bargain for drug prices, or getting real financial services regulations, or ensuring that farm subsidies go to those that need them and not Archer Daniels Midland. Even with public campaign financing, those things may not happen. But is it so hard to believe that the chances would be greater with it?

Posted by: dasimon | February 13, 2010 4:32 PM | Report abuse

"What you want to do isn't chip away at the edges of the Citizen's United decision, but use it as momentum to erect a whole new public funding structure."

You might as well just go for a constitutional amendment barring campaign contributions from everyone other than individuals who reside in the office holder's state.

Posted by: bgmma50 | February 13, 2010 5:41 PM | Report abuse

dasimon: “The issue is whether the benefit is worth the cost.”

Again, Lessig’s analysis of “dependency” only scratches the surface, and the remedy of citizens-financed elections has the benefit of pabulum at best and the cost of distraction at worst.

Instead, activist energy should be directed toward the reorganizing -- at its early organization meeting in December 2010 -- Congress’ legislative process into what Penn President Amy Gutmann and OIRA Administrator Cass Sunstein call a “deliberative democracy.”

Posted by: msa_intp | February 14, 2010 3:32 PM | Report abuse

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