Wednesday Blognado: Talk is cheap, except when it’s very expensive

When I was drawing up topics for blognado I item on my list was political speech and campaign finance, so when I saw that Elias and Dan post, I decided it was fate, or whatever equivalent we soulless materialists believe in.

I’ll start by talking about what I think is wrong with some of the common left-wing criticisms of the level of political contributions permitted by the Citizens United ruling, then move into where I see legitimate concerns and end with some (hopefully useful) suggestions as to how to untie this Gordian knot.

First off, Citizens United.  The two most common arguments I hear against this ruling from a constitutional standpoint are 1: Corporations aren’t people so it’s foolish to suggest they have rights and 2: Money isn’t speech so no-one’s right are being violated anyway.

I’ll start with the second argument first, it’s true that money isn’t speech no-one thinks of buying a hamburger as an expressive act, and for good reason.  But that’s not the end of the story.  If political speech is to mean anything it must be possible for it to be heard.  In his book The Pig that Wants to be Eaten Julian Baggini draws out a thought experiment where a repressive regime grants people licence to say whatever they want – provided they do so in a soundproof booth.  I think we’d all agree this would not be free speech in any meaningful sense, free speech means the freedom to be heard (provided someone cares to listen) or otherwise, what’s the point?  Money may not be speech, but in some contexts is is a necessary condition for speech, and therefore restricting it restricts speech.

If you’re still not convinced, let me offer you an example.  Let’s say Citizens United went the other way, and then in 2012 somehow an evil genius Republican gets elected president.  The new president then set out to hoist the left by its own petard by effectively eliminating abortion.  Banning abortion directly wouldn’t pass constructional muster so instead he outlaws paying for an abortion, or any goods or services that are used to perform an abortion.  That means all abortions must be offered for free, that charity offering them can’t pay for clinic space or medical tools, they have to be donated to them and the doctors must provide their services to the charity pro bono.  This would eliminate legal abortions, but it would circumscribe them very heavily.  When the law gets dragged in front of the Supreme Court, the Attorney General argues that money isn’t abortions then invokes the commerce clause and SCOTUS upholds the law in a 5-4 decision.  Thus Roe vs. Wade is effectively disembowled.  Money is one of the vital lubricants of a  modern commercial society.  Any good that is produced outside of a household is almost certainly going to be paid for and making it illegal to pay for such a good is very similar to making that good illegal.

OK, you might say, maybe it is a violation of people’s rights, but corporations aren’t people so there’s still no problem.  Well not so fast.  First off, let me stipulate that corporations are not people in any meaningful sense.  The law treats them as people for some purposes for policy reasons (reasons I generally consider valid), but not in others.  After all corporations can be owned and can’t vote, which would be illegal if corporations were actually people.  They are machines made out of law and contract, they can no more be said to have rights than any other inanimate object.  So what’s my problem?  Well, like I said, properly understood a corporation is really a kind of machine, it’s a tool for aggregating capital in a systematic way so that a group of people can do something none of them could raise the funds to do individually.  The reason tools don’t have rights is because they don’t have agency, when you get out your lawnmower to mow the lawn, we don’t say the lawnmower mowed the lawn, we say you mowed the lawn.  The lawnmower was just the means to that end.  Equally, every decision or action that a corporation takes was really performed by the owners of that corporation, either directly or via delegation.  Those owners are what the law calls “natural persons”, which is to say people.  Not virtual technical people, but real flesh and blood people.  People who have rights.  It may have been Citizens United that sued, but the rights that were violated were not those of that legal fiction, but rather the rights of the people who created and funded Citizens United, and they are definitely people.

Furthermore I think the idea that people shouldn’t be allowed to exercise their rights through corporations has some unfortunate implications.  Pre-Citizens United, the law was that you could fund all the political advocacy you liked if you were an individual, but you were limited through a corporation.  The point of a corporation is to allow a group of people to do something they couldn’t fund individually, the richer you are the less helpful the fewer things you need to create a corporation to do for you.  As such, the pre-Citizens United rules would have the effect of giving really rich people better access to political expression than not-really-rich people (or at least making the difference greater than it would be otherwise).  That strikes me as an odd position to take for someone who’s worried about the concentration of power in American society.  In fact, if I were trying to capture the political process for a cabal of millionaires I’d use a rule just like that one as part of my Evil Plan.

Consequently I don’t think the big arguments against Citizens United stand, the rules were badly constituted and should have been cut down by the Supreme Court.  But does that mean everything’s fine?  Not necessarily.  For one thing I take Elias’s point very seriously:

Because a Citizens United polity is one in which the vast majority of participants rightly feel themselves to be superfluous. And like a civic broken windows, the appearance of legitimacy is no second-order concern for a democracy. There is therefore a patent state interest in upholding the integrity of the political process, regardless of whether or not one is focused on the end-results of elections.

This reminds me of something that was drilled into me when I first joined the public service.  When you start working for government they explain the Public Service Code of Conduct, and why it exists.  A critical point is that it is not enough for public servants to avoid corruption.  That is necessary of course, but it is not sufficient.  The public service must also avoid the appearance of corruption.  This is because the degree of corruption in a society is driven by social norms i.e. what people will put up with.  Morality and the Social Contract are about defeating the remorseless logic of the Prisoner’s Dilemma.  The idea is to get everyone to choose co-operate even though they would benefit from defecting.  But if you think everyone else is defecting you’d be a fool to do any different.  If you think the government is just a way to divert money to politicians and their cronies why wouldn’t you cheat on your taxes?  A society that gets caught in that logic ends up in the hole Greece is currently in, because that’s how Greece ended up in the hole it’s in.  Even if unrestricted campaign finance doesn’t influence elections (and I’ve seen research suggesting it doesn’t), the perception is a real problem.

OK, so where I gotten to so far is 1: There is a real problem with campaign finance 2: Limiting political speech is a bad solution.  So if I don’t like speech restrictions, what should we do?

One idea is public funding of elections, which is Dan’s position.  This is certainly better than restricting speech, but still problematic for me.  For one thing, how do you decide who gets funding?  If you open the doors to everyone you create a colossal rort (people can run as candidates, use public money to give money to their friends and buy themselves campaign-related things they can use in their own life like fancy clothes.  If you curb that by limiting it to “legitimate” candidates then you have the government deciding who is legitimate, which just entrenches existing power structures.  If you turn the funding decision over to the popular vote in some way (like letting people donate some of their tax money to a particular party or candidate) you also reinforce existing structures by making artificially difficult for new ideas to propagate into the political system (after all new ideas are too new to be popular yet, but it’s hard for a idea to become popular if people find it hard to hear it).  So I’m not sure that’s a good solution either.

My proposal is two-fold.  One aspect deals with campaign contributions, and the other deals with PACs, super and otherwise.  Oddly enough one part of the solution involves requiring disclosure while another part prevents it.

For campaign contributions I’d go with an idea proposed by Megan McArdle:

I’ve long toyed with the notion that we should go the other way: allow unlimited donations, including from corporations.  But force them to go through an institutions which strips off the names and pools the money, so it’s impossible to see who donated, or even the size of the individual donations.  Once a month, you get a check from the campaign finance bank, and that’s it.

This wouldn’t prevent people from saying they supported a candidate, or even saying that they donated.  But it would prevent them from proving it.  Without the ability to credibly donate to a campaign doing any kind of quid pro quo deal would be difficult if not impossible.  In this special case maybe darkness is the best disinfectant.

As for PACs, I’d go the other way.  I firmly believe that people have  a right to advocate for a policy independent of any political candidate.  To suggest otherwise is to effectively state that people can only engage in political speech with a politician’s permission and I regard that as unconscionable.  But I think it is fair for people to know who they are listening to.  So I’d suggest a requirement that all PACs or PAC-like entities have to have an authorisation statement on their correspondence showing that the advertisement or other communication is authorised by a specific natural person (you could require a statement like this from every donor above a threshold, or if the donor is a corporations, an officer of the donor corporation).  That should give journalists enough information to dig out who is really behind any given advertisement.

I’ll freely admit that this isn’t  a perfect solution, but I think this is one of those situations where there are too many competing factors to balance to make a perfect solution viable.  I think this would at least go some ways to preserve the integrity and perceived integrity of the electoral system.  Beyond that, I’d suggest looking at your ridiculously elaborate primary system.  No wonder your politicians need so much money when they have to run in 2 elections.