More than two years after the Citizens United decision, the GOP is steeped in a prolonged presidential primary season, and so-called campaign finance “reformers” are both smug and upset about it. This morning, law professor and election law expert Rick Hasen published an opinion piece in Politico, “Of Super PACs and corruption.” He believes that “[i]t’s time to rethink the whole relationship between independent spending and corruption. Independent spending—and contributions funding independent spending—can indeed spawn corruption both directly and indirectly.”
Indeed, the way reformers tell it, all this political spending is destroying Our Democracy. While most of us “free speech types” (believe it or not, the term is pejorative in some circles) haven’t given serious challenge to limits on campaign contributions or the disclosure of them, the fact that we’ve freed up money to pay for speech about politicians and political issues is one giant black cloud over an all-encompassing platitude.
Hasen’s article focuses on dirty politics. His evidence of corruption (or its appearance) is that individuals and groups are not merely spending on political ads—they’re giving state and federal legislators the opportunity to change certain positions before running such ads. Apparently the speech clause isn’t the only bane to campaign finance reform: “the right of the people . . . to petition the Government for a redress of grievances” is just as troublesome, if those petitions come with teeth.
Having said that, Hasen’s corruption argument is not baseless. (Before quoting that out of context, dear reformers, please read on.) If I or a group of people band together (as nonprofit, a union, a corporation, etc.) and start buying a lot of advertisements in support of a particular candidate, that candidate may feel grateful to me or my group. The candidate could feel so grateful that if he wins the election he could then wield his newfound position to grant favors for me or my group. Conversely, as Hasen points out, “Lawmakers . . . will bend to either please those outside groups or to curry favor with other groups to fight back.” (Emphasis added.) Even if this corruption does not happen, reformers argue, its mere appearance is a great danger to Our Democracy and must be stopped, lest people stop participating in politics because they’re so disillusioned. (Americans are too dumb to see past political advertising, but they’re apparently smart enough to know they’re not being served by their government. Go figure.)
But how to stop this great danger? Well, that’s where things get tricky, and scary.
Outside of overturning Citizens United, Hasen offers little by way of guidance in this morning’s piece. Since this possibly-corrupting fallout of robust political speech is the very result of nothing but, well, robust political speech, the situation that led to the Citizens United case is all but inevitable: a federal agency will once again have the authority to ban a movie about a presidential candidate, and the government’s chief lawyer will once again tell the Supreme Court they could ban books if they advocated for or against a federal candidate at the wrong time.
It’s not that we free speech types don’t believe that speech can lead to corrupt relationships, it’s that the reformers’ solution is far more dangerous to (dare I use the term?) Our Democracy than the problem. When the chance that people may build corrupt relationships with politicians by independently advocating for their election is compared to the certainty that citizens will not be allowed to speak in the first place or speak under arbitrary limits and red tape so thick that their speech is all but guaranteed to be dwarfed by, say, the mainstream media (whose advocacy always gets a pass from many reformers, despite the vast sums of money they use to get the message out)… it’s a no-brainer. The so-called corrupting influence of political speech is a risk we accept for our right to free speech, just as we give Hustler Magazine the same First Amendment protection we give Shakespeare.
Furthermore, the First Amendment is the ultimate protection against the corruption Hasen describes. It protects a free press to expose corrupt shenanigans. It gives everyone the right to get the word out. But it’s a messy marketplace of news and ideas, and that’s probably the strangest thing about the reformers’ vision of Our Democracy: it’s supposed to be so clean, shiny and efficient. Instead of being evidence of American freedom, the “divisive” nature of political rhetoric is a problem.
I’m not particularly excited about the GOP primary tumult or negative political ads, but it’s outstanding that this primary season is forcing the Republican Party to figure out if it will have an identifiable platform going forward. After a decade of “compassionate conservatism” that was indistinguishable from “compassionate liberalism,” the Tea Party really shook things up in 2010. And it’s not over yet. While the old guard may lament that this shakeup could lose the eventual GOP nominee the election, I think it’s a good thing if Republicans place their identity and mission above a 2012 victory: the results so far scream this, far more than “corruption.” This, ultimately, speaks far better for democracy than any reformist platitude.