When Robert Weissman, president of the advocacy organization Public Citizen, told reporters last Thursday that “today is a day to shed a tear for our democracy,” hyperbole was not on my mind.
There has been a broad range of reactions to last week’s radical Supreme Court decision to allow unlimited corporate money to be spent on political campaigns. Activists are calling for changes to the way elections are financed, an increase in the power of shareholders to regulate the political spending of CEOs and even a Constitutional amendment in order to combat the ruling.
“This will dramatically change the landscape of our politics,” said John Bonifaz, legal director for Voter Action, a nonprofit election integrity organization, in last week’s press call shortly after the decision was announced.
This quick response was heartening to me, as I gloomily pondered the effect of these new campaign finance rules on the 2010 election cycle. Indeed, the big surprise came from those who had the audacity to argue that not only should corporations be allowed to spend whatever they want on campaigns, but that it really won’t make any difference at all on American politics.
“It’s hard to follow no matter where you lean politically,” Lisa Gilbert, a democracy advocate for the U.S. federation of Public Interest Research Groups (U.S. PIRG), told me when I asked her about the logic behind such an argument in a phone conversation earlier today.
This weekend, New York Times writer David Kirkpatrick argued that there is no evidence that corporate money makes a difference in American politics. He noted that in the recent Supreme Court decision in the Citizens United case, Justice Anthony Kennedy remarked that there was no evidence offered in the case to show that campaign money ever bought a lawmaker’s vote.
Yet, the reason for the absence of evidence as cited by Kennedy had more to do with the activist way the Supreme Court pursued this case. As I noted previously, when the justices heard the case last spring, the Supreme Court ordered that rearguments take place in September addressing whether two key precedents in campaign finance reform challenges should be overturned, essentially asking whether judicial precedent on campaign finance should be thrown out.
“[The Supreme Court's move to] imbue this decision with a much broader set of arguments… shows on its face that they are activist,” said Charlie Cray, a policy analyst for and the director of the Center for Corporate Policy, a public advocacy group working toward greater corporate accountability. “It’s a frightening sign of the kind of activism to come.”
“Kirkpatrick’s argument is preposterous,” wrote Public Citizen’s Weissman in an e-mail response to my questions. “The reason there was no evidence in the record that Kennedy examined is that the issue of corporate influence was not at stake in this case until the Supreme Court so decreed. No one developed evidence on this point, because no one thought it mattered to the case (or that it was in doubt).”
Then again, much of Kirkpatrick’s reasoning relies on fuzzy logic. At one point he insists that “after Congress further tightened the rules with the landmark McCain-Feingold law in 2002, banning hundreds of millions of dollars in unlimited contributions to the political parties, public trust in government fell to new lows, according to polls.”
Not only does Kirkpatrick fail to say which polls he’s referencing, but one wonders why the public’s trust should be won by the mere passage of an admittedly compromised law. Perhaps the airing of just how much corruption there is in campaign finance caused said trust to drop off, but regardless, correllation is not causation.
His next point is equally specious:
And what about the corporations that contributed so much of that money? A review of the biggest corporate donors found that their stock prices were unaffected after they stopped giving to the parties. The results suggest that those companies did not lose their influence and may have been giving “because they were shaken down by politicians,” said Nathaniel Persily, a professor at Columbia Law School who has studied the law’s impact.
“To me that’s just kind of absurd,” Cray said of the assertion made by Kirkpatrick, George Will and others. Cray asked that if that were the case and campaign contributions really had no effect, “wouldn’t that be fiscally irresponsible” to spend those millions on political campaigns?
Daniel Schuman, policy council at the Sunlight Foundation, a group working for greater transparency in government, said the argument being made by those who deny the effects of campaign contributions is one using “social science,” a discipline in which it’s impossible to “prove anything.”
“They could be setting up straw men,” he said. “We can’t prove that gravity exists, but people don’t argue that it doesn’t.”
Nestled within the argument that corporate contributions don’t change the way politicians do business is the notion that businesses should have the right to engage in the political process as a way to ensure equal freedom of expression in American politics. But, as the old saying goes, some are more equal than others.
Jeff Milchen, co-founder of the American Independent Business Alliance, explained that while large corporations now have the ability to take their shareholders’ money and use it to curry political favor, the small businesses his organization represents do not reap such benefits under this decision.
“Small business owners don’t need this artificial creation of corporate speech,” he said in a phone interview today. “It’s of no advantage to them, and a substantial handicap.”
Milchen also warned against those who use the cause of American businesses as a reason to support the Supreme Court decision.
“I’d caution people to be extremely skeptical whenever you see a news article that puts things in terms of pro-business or anti-business,” Milchen said. “Usually that’s code for the interests of huge transnational corporations.”
The larger argument in support of the Supreme Court’s decision rests on the insistence that corporate donors have no measurable effect on elections or governance. But Cray took umbrage with the idea that there is no evidence of corruption in the corporate financing of elections.
“What about Duke Cunningham? Here’s a guy who had a menu on his desk,” showing just how much it would cost in campaign contributions to get a political favor, Cray said.
Public Citizen’s Weissman pointed out there is evidence on the other side of the giving tree as well:
“I don’t believe there is a single person on Capitol Hill who believes that contributions do not get you access to members of Congress,” he wrote. “To take one example among thousands: Does anyone believe that auto dealers managed to win an exemption from the Consumer Financial Protection Agency that would be created by legislation that recently passed the House, because they made good arguments? They obviously succeeded because of their influence.”
Gilbert of U.S. PIRG argued that not only is such a presumption incorrect, but it’s unnecessary to point to a specific event as evidence of quid pro quo. Even if the flood of corporate money flowing into the system does not happen at the “astronomical” levels expected, she said, the fear of corporate retaliation could give a lawmaker pause, “leading them to pander to corporate interests” anyway.
Not that things weren’t bad enough already, she noted:
“Our system as it stands is incredibly corrosive.”
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