Super PACs and the Possibility of a Free and Fair Election

Journalist Elizabeth Drew draws our attention to the fact that Super PACs may be inhibiting our ability to have a free and fair election in this country. She points out that large amounts of money from single donors have helped keep both Santorum and Gingrich in the presidential race.

Somewhat surprisingly (in my opinion) she argues against the need for a constitutional amendment. Her argument seems to be that we should never (or almost never) amend the constitution because if we do it for something good and worthwhile (like getting money out of politics so that we can have a free and fair democratic elections) then…

…it sets a very bad precedent…Once the precedent is set, what is to keep countervailing forces from pressing for, say, a change in the First Amendment that would remove what remains of the constitutional wall between church and state?

That seems like a very bad argument. In fact, the only major amendment that has ever been repealed has been the 18th amendment which prohibited alcohol. The fact that the constitution is so difficult to amend means that if we are only likely to get over that hurdle for something that people see as a true and necessary improvement.

And despite the fact that she and I agree that this soft money represents an undoing of the democratic process, her solution (such as it is) is remarkably tepid. She would like to rely on legislation limiting funds (which would seem to be unconstitutional with the current court) and public opinion:

The abuses of soft money could be curbed in a way that doesn’t violate constitutional principle. The amount of money provided by public financing might be deemed insufficient to induce presidential candidates to stay within the system—it would also limit the amount that they could spend. In 2008, Barack Obama turned down public financing so that he could raise more money on his own. But the amount of money the candidate would receive could be enhanced by partial public financing, in which limited individual contributions would be matched by public funds. This would enable candidates to have a floor of sufficient financing to assure a competitive race.

 

Backers of this proposal say the incentive for future presidential candidates to accept such financing would come from political pressure establishing a “new norm” that would encourage such behavior.

That seems wildly optimistic and shows a true lack of understanding of the problems. The problems as I see them:

  • Money is not speech. People have different levels of income and wealth. They should not have different levels of speech. Corporations and unions are not even people, but rather legal fictions. They can have lots of money, but they can have no right to free speech as they are not human beings.
  • Campaign contributions operate like an arms race. There is no finish line in which candidate’s have raised “enough” money. The goal is simply to gain more than your opponent. That’s why the increasing amount of money in each election cycle makes perfect sense. But a campaign that costs $1 billion per candidate will not be any more democratic than once that costs $100 million per candidate. And if, despite Justice Kennedy’s assertions to the contrary, it gives us politicians that are beholden to certain people or corporations, it can result in a result that is much less democratic.
  • The Supreme Court has already said that we can’t limit soft money. With politicians always in need of more money (see the point above) they will go where the money is. If we can’t get the money out through legislation, then we need to do so through amendment. And frankly, this is the perfect type of issue for an amendment. It is not in Congress’s interest to prohibit fundraising since many of them are probably quite good at it (that’s why they were elected to Congress). If democracy is a government “of the people, by the people, and for the people”, it is time for the people to take back this particular democracy.

 

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