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Dems love to talk about Citizens United but it's an earlier decision that's the real problem: Buckley v. Valeo. Buckley held that spending money was a protected form of speech under the First Amendment. The ruling enabled unlimited independent expenditures by individuals.
Buckley allowed a few wealthy individuals to exert outsized influence on politics. The more the rich spend in election cycles, the more elections cost which necessarily limits the pool of who can run: sycophants or the wealthy.
The court's reasoning for classifying spending as a form of speech was based on the idea that the only way to participate effectively in the national political discourse was to spend money. However, with social media that is clearly no longer true--if it ever was, to begin with.
It is notable, however, that Democrats do not talk about Buckley. Overturning Buckley would truly disempower the wealthy donor class. Limits on independent expenditures would have an equalizing effect, truly allowing for the marketplace of ideas to function as intended.
In short, I don't want to hear pandering about Citizens United from Democrats. It's time to focus on the root problem: Buckley.
At most, spending should be understood as a form of expressive conduct, subject to a lesser form of scrutiny than speech.
The Buckley court dismissed this notion and also stated that even if it hadn't, limitations on independent expenditures wouldn't pass muster. Such limits, it said, were related to the suppression of the expression.
But that's debatable and should be reconsidered.
But that's debatable and should be reconsidered.
In any case, Buckley court weighed gov't's interest in preventing corruption and the appearance of it against plaintiffs' speech rights. It held that the government's interests would triumph but independent expenditures did not give rise to either corruption or its appearance.
In so deciding, the court created a narrow definition of what constitutes corruption. Only outright quid pro quo arrangements will qualify. That means the access and influence big donors have on politicians that regular people do not, isn't corrupt in the court's eyes.
The effects of Buckley are difficult to measure--an exhaustive but controversial study out of Princeton found that policy outcomes are determined by the support or opposition of the wealthy. Subsequent studies have found that the extent of that influence was overstated.
But perhaps the best test would be not in which policies pass or fail but in which are proposed in the first place and by which candidates. For example, we will see which Dems push a carbon tax vs. endorsing a sweeping Green New Deal in the face of a global climate crisis.
The fact that popular policies do not even get proposed would indicate that this is the right line of inquiry. For example, a majority of Americans support banning fracking but no legislation has been introduced to ban the practice.
The strongest evidence that policy may be unduly influenced by special interests is the growing prevalence of the so-called “revolving door” between the legislative branch and lobbying firms.
The year Buckley was decided, just 5 percent of congressional representatives and senators went on to become lobbyists. In 2016, however, the number was up to about a third for the former group and roughly half for the latter.
Moreover, it's just reasonable, based on the amount of time elected officials spend calling constituents for money, to say bigger donors have more influence.
But even if that corrupting influence is difficult to measure, the perception that it is indeed corrupting certainly isn’t. An overwhelming majority of Americans support government efforts to curtail election spending and feel large donors have outsized influence.
For example, a Pew Research survey from May 2018 found that 77 percent think “there should be limits on the amount of money individuals and organizations” can spend. pewresearch.org/fact-tank/2018…
Meanwhile, 72 percent feel that big donors have more influence than regular people—including a majority of both Democrats and Republicans.
Case in point: Even if we accept Buckley's premise that spending is a form of speech (though it should be considered expressive conduct), the logic of the decision falls apart. And corruption--or at the very least the appearance of it--has resulted.
Buckley must be overturned.
Buckley must be overturned.
One last point: Booker's tweet isn't even accurate. Direct corporate contributions to candidates are illegal. Citizens United allowed corporations to use their treasury funds on unlimited independent expenditures.
What a mess we're in.
What a mess we're in.
