If you were running for office and you knew that for every dollar you spent the government would give a matching dollar to your opponents, would this affect your decisions on how, whether and when to spend money on getting your message out? And if you had three opponents who all receive matching funds to counter your solitary speech could those matching funds keep you from speaking at all?
These were the questions the Supreme Court heard on Monday in the case of McComish v. Bennett, a First Amendment challenge to Arizona's "clean elections" act. The act gives funds, so-called "matching funds," to publicly funded candidates whenever privately funded opponents spend above a certain threshold.
Thankfully, the Court shows all indications that it will rule the clean elections act unconstitutional, striking a blow against increasingly innovative attempts to make elections "fair" by suppressing and chilling speech. Like so much campaign finance control, the Arizona clean elections act only sullies the First Amendment and hurts those who want to change the status quo the most.
Many Democrats fondly remember the tumultuous summer of '68 and the infamous Democratic National Convention in Chicago. It was a bellwether moment for the party, but it was a moment that may never have happened if a law like Arizona's clean election act was in effect.
Since those who forget history are doomed to repeat it, let us now recount the story of Eugene McCarthy, a champion of traditionally left-wing causes, a vehement opponent of the Vietnam War when few Democrats would join him, and a lifelong critic of campaign finance reform. How are these compatible?
Eugene McCarthy was somewhat the Dennis Kucinich of his day. He was one of two Democrat Senators to vote against the Gulf of Tonkin Resolution, the resolution that helped escalate the Vietnam War. By 1968, the war had become one of those uniquely American wars: interminable, bipartisan, and aimless. McCarthy decided to run for president in order to end the war. Like all speakers who wish to reach a large audience, McCarthy needed the money to get his message out. An estimated one-third of McCarthy's money came from large contributors who would have been criminals under modern campaign finance regulations.
McCarthy's hippy supporters were told to "get clean for Gene." They cut their hair, shaved their ragged beards and unleashed a massive grassroots effort to unseat LBJ. In the crucial New Hampshire primary McCarthy took 42% of the vote to Johnson's 49%, not a victory but still a massive showing for a non-mainstream candidate against an incumbent. Seeing LBJ's vulnerability, Robert Kennedy entered the race four days later. With the growing revolution in the Democratic Party, LBJ did not run for a second term.
The Arizona clean elections act would have been unclean for Gene. If LBJ had decided to become a publicly financed candidate, McCarthy's success at private funding would have been penalized by taxpayer money given to his opponent. Moreover, if Robert Kennedy had joined the primary and also accepted public funds then both of McCarthy's opponents would have received funds to counter McCarthy's message. McCarthy, facing such odds, would've been wiser to remain quiet.
Supporters of the Arizona law say matching funds won't chill speech. They say this despite simultaneously arguing that the matching funds provision was intended to make public funding more attractive to potential candidates, in other words, to chill or eliminate privately funded speech.
Arguably, under a public financing system like Arizona's, McCarthy would have had the better option to take taxpayer funds rather than solicit contributions from wealthy donors. This, of course, would place him on an equal footing with LBJ, assuming Johnson also took public financing. But few candidates would want to be placed on an equal footing with their opponents, particularly an incumbent who already enjoys massive advantages.
And why should they? If a candidate can get more support from individual contributions than they would get in taxpayer funds, why shouldn't they opt out of the public financing? Obama made the same calculation in 2008, viewing it as his prerogative, if not duty, to use private donations to make his voice as loud as possible.
A matching funds provision, of course, would make a candidate think twice about this. Arizona's bill was specifically designed to make privately funded candidates fear the consequences of successful fundraising, something the First Amendment cannot tolerate.
At a time in which interminable, bipartisan and aimless wars are multiplying, we need more Gene McCarthies to stand up and speak truth to power. Giving "the power" -- i.e. the government -- the ability to control speakers is dangerous. The Supreme Court should, and likely will, strike down this pernicious law.
Trevor Burrus is a legal associate at the Cato Institute's Center for Constitutional Studies.
Under today's campaign finance laws, of course, this is impossible.
Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
http://www.time.com/time/magazine/article/0,9171,972359,00.html
And this week "lobbying" efforts on behalf of the Fiesta Bowl have blown wide open hitting pretty much everyone (with King Pearce basically claiming he is as innocent as Scott Bungaard.) down at the State Capital.
Why does this matter? Can business not have an opportunity to lobby the state lege? Sure, but not to the point that it was not until the Arizona Chamber of Commerce said "cool it with the immigration legislation" that we got some sanity restored to the capital on that topic. It was not threat of lawsuit, not protests, not recall efforts-but business (who already were able to get anything that would really solve some of the problems stripped out of the laws that have passed.)
So Clean Elections is a very balanced way of dealing with the problems you have when one part of the community is having too much influence on laws in this state. It is strictly voluntary, you have to have an opponent raise more than you in the traditional way to trigger the matching funds and even if the matching funds do get triggered, it is capped after a certain point.
Did candidates in the 1960s have the added benefit of privately funded groups buying up the airwaves on their behalf without regard to spending limits or equal airtime rules? On hundreds of channels? Online? On politically biased cable "news" pundit shows? Spending millions anonymously to sling mud at their opponents without attribution or any requirement for truth in advertising?
No, they did not.
More to the point: How does influencing a person's decisions about how/whether to spend money restrict their legal right to say what they want? It does not. Candidates are still completely free to publicize their message (using any number of FREE avenues as well).
The article mentions but glosses over the "threshold" that triggers the matching public funds. You pretend as if defeating this law would help the under-funded underdog, but it doesn't kick in until private funding (a.k.a. outside interests trying to buy political influence) passes a certain amount. This is extremely unlikely for any grassroots, door-to-door hippie movement.
If anything, private election funding should be done away with entirely. That eliminates the problem & forces candidates to an equal footing from the start. Maybe then we wouldn't have to deal with annoying, idiotic attack ads every 5 minutes during election season.
The whole "corporate rights" thing is about being able to push one issue only: corporate political contributions. Frankly if corporations were pushing for larger recognition as independent contributors to the political process, they'd be asking for voting rights.
But that's plainly ridiculous, (even to Cato).
In any case, they have a (partial) point -- at some level, a company represents a very small part of the political will of an individual shareholder, but if it's to be a legitimately recognized function, it needs utter transparency, and each stockholder down to the individual needs the right to opt out of assigning any individual political power to a company (or other investment vehicle).
Also, this is not inconsitent with last year's misguided SC decision. The decision can be revised with such detail. Congress can make law requiring political transparency down to an individual. Congress can force a mechanism for an individual to opt out of a company contribution (for actual money).
What they needed was to remove the opposition, a.k.a. the Collective Bargaining rights of the middle class.
As such when you buy the vote in Washington, you can see that Congress is not likly to pass said revisions.
They may just trust that a company is good at making money within the rules, but not be willing to give over their political voice on what the rules should be to the company.
This is a stark contrast to inherently political organizations (like NRA) whose mission is political advancement of an agenda. Member contributions are EXPECTED to be spent politically and completely transparently.
Saying that a corporation is an extension of the political voice of its shareholders is a lie.
Rather a corporation's political contribution "voice" should be treated like a union in a right-to-work state: The individual contributor (stockholder) should have the right to take an alternative dividend in lieu of any of their share of profits going to political contributions.
And the Supreme Court got this totally wrong. But they've screwed up before and corrected it. Eventually.
http://www.huffingtonpost.com/miles-mogulescu/ge-imagination-at-work-in_b_842111.html
http://ir.correctionscorp.com/phoenix.zhtml?c=117983&p=irol-irhome
http://ir.correctionscorp.com/phoenix.zhtml?c=117983&p=irol-irhome
http://www.socialmedicine.org/2009/01/30/uncategorized/record-marijuana-arrests-feed-the-prison-industrial-complex/
http://www.economist.com/blogs/democracyinamerica/2010/08/private_prisons
I can keep going even. If you dont like the evidence of the Private Prison Lobby take a look and Golman-Sachs presedential contributions, both gave to each campaign, but Obama got twice as much, and then he extended the bailout and helped the banking interest.
Face it the Lobbies control legislation, and when you consider that the Military Industrial Complex and the removal of Potsi Como Tatus, (Im almost sure I spelled that wrong), becoming involved with the dentention of civilians, take a look at Army regulation 210-35, Civilian Inmate Labor camps.
On top of that you neglect WI and Walker, the removal of Collective bargaining rights, but the courts are doing a great job, atm, of keep him in check.
Without clean election funding, the Aristocracy rules the state.
And "eventually" concerns me.
I am for cleaning our politics from corruption - are you?