Putting The Kibosh On Campaign Finance Regulations--And Augmenting Speech Protections In The Process
By Pejman Yousefzadeh Posted in Law — Comments (3) / Email this page » / Leave a comment »
I generally find campaign finance regulations to be some of the more pernicious speech codes around. In the name of "clean politics" and a Mr. Smith-like quality to our governmental system that presumably existed in a bygone age, campaign finance regulation advocates push for and too often pass some of the more objectionable pieces of legislation around. The end result is that any and all corrupt elements end up finding another way of doing their dirty work (yes, it is possible to create a black market in corruption in response to ill-considered legislation) while the actual exercise of speech suffers.
The Roberts Court still has miles to go before carving out a unique identity for itself regarding its jurisprudence on this issue. But today was a good start:
The Supreme Court displayed little appetite on Tuesday for making basic changes in its approach to campaign finance law, under which the government may place limits on political contributions but not on a candidate's spending.
Vermont's aggressive effort to drive much private money out of politics, through a law it enacted in 1997 that set tight limits on both contributions and expenditures, appeared unlikely to withstand the court's scrutiny after an argument that included a low-key but withering cross-examination by Chief Justice John G. Roberts Jr. of Vermont's attorney general, William H. Sorrell.
The chief justice challenged the attorney general's assertion that money was a corrupting influence on Vermont's political system, the state's main rationale for its law. "How many prosecutions for political corruption have you brought?" he asked the state official.
"Not any," Mr. Sorrell replied.
"Do you think corruption in Vermont is a serious problem?"
"It is," the attorney general replied, noting that polls showed that most state residents thought corporations and wealthy individuals exerted an undue influence in the state.
The chief justice persisted. "Would you describe your state as clean or corrupt?" he asked.
"We have got a problem in Vermont," Mr. Sorrell repeated.
The chief justice pressed further. If voters think "someone has been bought," he said, "I assume they act accordingly" at the next election and throw the incumbent out.
I am no expert on the voting patterns of the great and good people of the state of Vermont, but the Chief Justice's instinct to trust the voters and the marketplace to carry out appropriate acts of electoral retribution in response to perceived corruption is probably a lot better than the alternative provided by the attorney general of Vermont. At the very least, the approach should be given a try in a democratic republic, should it not?
He also challenged a line from the attorney general's 50-page brief, an assertion that donations from special-interest groups "often determine what positions candidates and officials take on issues." Could the attorney general provide an example of such an issue, Chief Justice Roberts asked. Mr. Sorrell could not, eventually conceding that "influence" would have been a better word than "determine."
By the end of the argument, it appeared clear that Vermont's spending limits would fall, and that its contribution limits, the lowest in the country, were hanging by a thread.
Indeed, to support the proposition that campaign money is given in appreciation for a politician's stance on certain issues rather than in order to influence that stance, the Chief Justice need only have made reference to Freakonomics. A cogent and compelling discussion of the issue of money's role in politics is contained therein and I commend it to all and sundry.
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Putting The Kibosh On Campaign Finance Regulations--And Augmenting Speech Protections In The Process 3 Comments (0 topical, 3 editorial, 0 hidden) Post a comment »
I might just add that in some cases elected officials are, in fact, bought. However, in those cases no amount of "reform" will make them honest people. I discovered that those who want to be corrupted (not just politicians, people in general) will find someone willing to corrupt them and they will jointly find a way to make the corruption happen.
I would submit that full disclosure of donations of any type, from every source in a format that is both publicly available and searchable will do more to "clean up" politics than all the "reform" laws ever written.
It's interesting that the cycle between "reform legislation" and figuring out how to beat it seems to be shrinking. I recall it used to take a couple of election cycles to beat the new "reforms" (back in the '60's and '70's). This last "reform cycle" had attorneys designing work arounds before the new law was even voted on.
...by the Supreme Court members themselves, exampled by the questions and response. The Justice, in his response and questioning, basically was saying, that if the voters are aware of the corruption, it is in the best interest and the voters infinite wisedom that the "Bum be Thrown Out"...<<<(adding drama, my apologies).
Assuming of course, that the public cannot be "tricked" as this hypothesis requires, it is his reasoning that he can accurately predict, from an assumption, the social and public action of the masses in an election to establish who will control power, influence and policy making, providing a stitch of proof from any "sociologist" study or some other form of supporting evidence to his hypothesis of human behavior and reaction in a political situation.
The arguement also ignores a key element (that surely the court wants to avoid) for the success of any true corruption of the political process. That being, a mirror corruption of the judicial system to back it up. To have "ZERO" prosecution of corruption within a politcal system says more about the judicial systems inability to prosecute violation of the law than the "sterile" atmosphere of the political system, which of course it is not. As the court themselves pointed out in so many words, "Manipulation of the political system is an inevitable outcome of the process. This is why we have election so we can throw the bum out".
I have a contray view. A state that has absolutely "ZERO" convictions in an atmosphere that will inevitably create corruption ( the Supreme Court's own words), we have a state with no convictions.
If things were normal and corruption was part of the process (as again has been claimed), then where are the convictions?
I'd like to see more about this, much more before a can make a decision. But, my instincts tell me to find all the evidence first for all behavioral claims and so forth, then see what I see. I know one thing, "ZERO" convictions does not represent reality. That, in itself is a problem.
I wonder what Brad Smith thinks of CFR being said to bring a "Mr. Smith-like quality" to anything.