THE BLOG
11/12/2012 09:38 am ET | Updated Jan 12, 2013

The End of Polish Rules and Election Day Bribery?

The increased Democratic margin in the Senate has important implications far beyond an additional vote or two for key legislation. It has empowered the Senate Majority Leader, Harry Reid, to publicly commit to reform of the Senate Rules.

Reid will not end the filibuster -- he's too much of a Senate traditionalist for that -- but he wants to restore its historic role as an occasional safety valve, not a routine road-block. So he's likely to make changes like eliminating the filibuster-before-the filibuster, on the "motion to proceed", get rid of anonymous holds, and force those who wish to filibuster to stand up and do so -- instead of being able to simply stop the Senate by withholding unanimous consent.

Reid had earlier said that his 2010 decision not to change the rules had been a mistake. But his ability to correct that mistake depended on the size of his margin as Majority Leader, since not all Democrats are enthusiastic about reform. And the effective 55 vote caucus that came out of Tuesday's election enabled Reid to make a public commitment: "I think the rules have been abused, and we are going to work to change them. We will not do away with the filibuster, but we will make the senate a more meaningful place. We are going to make it so we can get things done."

While some speculated that there were Republican senators who might join, in the belief that if they recapture the Senate after 2014 they too will need the ability to make the Senate work, the hard right immediately try to filibuster the decision about rules for the filibuster! They did begin to frame simple majority rule in adopting Senate procedures at the beginning of a Congress as "the nuclear option." Their argument is that whatever the Constitution says, the procedural vote by the Senate decades ago that closing off debate requires 60 votes is a permanent change which can only be modified by -- 60 votes -- even at the beginning of a new Senate. The decision about this question however, will, in fact, be made by a simple majority -- and the Senate will still be standing and not a white more radioactive than it is today. But the deep hostility of the hard right to majority rule -- reflected in their affection for voter suppression and unlimited influence for wealthy donors -- comes through here as well.

Changing the Senate rules as Reid proposes is not just a procedural tweak -- it makes a fundamental difference in the relative power of the Senate and House, and means that if House Tea Party Caucus members continue to pass legislation that will not stand the scrutiny of public debate, Reid can put more popular alternatives on the Senate floor and make Republicans choose, instead of hiding behind unanimous consent. It's a major step forward to restoring a functional Congress, and ending the threat I have written about previously -- that like 18th century Poland, the United States would be brought to its knee by allowing a tiny majority to veto critical legislative decisions.

But it's only one of two procedural changes this Congress needs to make to begin restoring a vital democracy. The other is to tame the flood of bribery flowing into politics in the guise of independent campaign expenditures. Here there is no single fix, no moment in which the Senate (or even the Senate and the House) will vote and solve the problem -- because it is rooted in irrational Supreme Court rulings that campaign spending does not create corruption or undue influence on the political process, but is instead simply speech.

In the light of these decisions, particularly those in Citizens United which made corporations voters in their contribution privileges, and another ruling called Speech First allowing unlimited campaign expenditures by independent groups with only the barest fig leaf separating them from a candidate's campaign, America had its first $6 billion election. The bulks of this week's reporting is on how much of that money seemed to be wasted, because the candidates on whose behalf it was spent lost anyway. The NRA, for example, didn't win a single one of the elections on which it spent a total of $17 million. And indeed, once campaigns reach a certain level of funding, additional dollars have only a modest impact on the voters and the outcome.

But that ignores the more important result of unlimited big money in politics -- it may not influence the voters, but it surely influences the politicians. The NRA may have lost all of the races on which it spent $17 million -- but neither the president nor the new Congress will ignore the fact that it had $17 million to spend. As a result, efforts to pass gun control laws will go nowhere. Why were fossil fuel interests bankrolling ads attacking wind power in Iowa, a key swing state for their candidate Mitt Romney and a state where the polls showed overwhelmingly that voters supported wind power? Why did Crossroads GPS pour hundreds of thousands of dollars into Heather Wilson's Senate effort after it was clear she had lost -- to send a signal to the next Congress that pro-fossil-fuel voting behavior would be rewarded at campaign time, opposition punished. Or why was so much of this year's advertising devoted to attaching Democrats on energy issues -- the hooked-up Solyndra scandal, cap-and-trade votes from two years ago the voters had forgotten, Obama's EPA regulations cleaning up power plants -- that polling consistently showed actually were very weak arguments to move voters. Because the purpose of this spending was not simply to get more votes -- it was to reward Congressional candidates for voting with oil and coal -- exactly the kind of corruption that the Supreme Court has grudgingly conceded the Constitution does not protect.

But the Court is not ready yet to back down. So fixing this problem will require time, and a wave of smaller reforms. One, of course, is to require disclosure of the sources of all this campaign money. In California at the end of the campaign it turned out that the Koch Brothers were deliberately concealing its role in funding a number of political campaigns. And Chevron pumped $2.3 million into a Super PAC that then went after a number of environmental members of Congress, with ads that nowhere disclosed that big oil was behind them.

A second opportunity exists in the pending reform of corporate taxes. Non-profit corporations that participate in politics give up some of their tax benefits. Why not apply that rule to for-profit corporations that choose to make campaign expenditures. Indeed, even after Citizens United Chevron's spending was unusual among Fortune 500 public companies -- only four others made such direct treasury gifts. So if in the pending corporate tax debate Congress created a somewhat lower tax level for companies that stayed out of politics -- including shutting down their Political Action Committees -- it's likely that shareholders would insist that management pick the low tax option. This is particularly true since studies are showing that companies that spend on politics typically are less profitable than those which stick to business.

The third, and toughest road, is to pass a comprehensive challenge to the Supreme Court's "anything goes". This can be done most completely through a constitutional amendment -- and President Obama has recently spoken out in favor of one. A campaign for an amendment -- even before the amendment passes -- may well change both the congressional politics and future Supreme Court ruling. (As the 19th-century humorist, Peter Finley Dunne wrote, " th' Supreme Court follows th' election returns" and it also follows challenges to its jurisprudence by the public.

But reformers need not confine themselves to the amendment pathway. Comprehensive legislation could also be passed, designed to respond to the Court's repeated distinctions between fair elections -- not an allowable reason for spending and giving limits -- and corruption -- which is permissible. Indeed, former FEC Commissioner Trevor Potter has repeatedly made the point recently that by opening the flood gates so wide, the Supreme Court has actually authorized the kind of corruption that it promised its rulings would prevent. After all, as long ago as the 1930s, famed reformer Lincoln Steffens recounted how the big city machine bosses he interviewed as a journalist were all utterly clear that campaign contributions were, functionally, bribes. So while legislation limiting campaign spending for fair election purposes may not withstand court scrutiny, a tougher definition of corruption and bribery may.

And this is one issue on which, if we want bipartisan agreement, it's there to be had. In Montana and Colorado, 75 percent of the public voted for ballot measures calling for the repeal of Citizens United. An Election Day national poll showed that "more than three quarters (78 percent) say there is too much money spent on campaigns and there need to be reasonable limits" and found no distinctions between the attitudes of Democrats and Republicans.

So this year's election results are not just important for who won -- they are important because they could set the stage, with leadership from Tuesday's winners, for the healthier, more vibrant democracy America will need to solve its problems.

A veteran leader in the environmental movement, Carl Pope is the former executive director and chairman of the Sierra Club. Mr. Pope is co-author -- along with Paul Rauber -- of Strategic Ignorance: Why the Bush Administration Is Recklessly Destroying a Century of Environmental Progress, which the New York Review of Books called "a splendidly fierce book."