No, Super PACs Are Not Good For Democracy

Citizens united(Image by Kip Lyall)

It’s rather predictable, and in that way perhaps more forgivable.

Who wouldn’t expect two of our more clever journo-bloggers (who, not incidentally, both could be described as libertarian-curious) to acquiesce to their more ignoble desires and pen contrarian takes on Citizens United‘s impact on the 2012 election? Indeed, as someone who is not paid for his keyboard tappings, but nevertheless feels compelled to find somewhat interesting things to write about during the campaign, I can understand how the Super PAC world has been a boon to many media scribes. It’s given us “King of Bain,” Foster Friess, Sheldon Adelson, and the spectacle of Romney as Sisyphus, rolling the GOP nomination inch-by-inch up the mountain.

Nevertheless, Will Wilkinson and Dave Weigel are very, very wrong. They’re wrong in the same way; and they’re wrong twice-over. They’re wrong about why some people think the effect of Citizens United is and will continue to be so negative. And they’re wrong when they say why they think it isn’t.

Their first mistake may be understandable, but it’s also an example of how we sometimes fail to give those with whom we disagree enough credit. Here’s how Wilkinson ventriloquizes:

The Citizens United decision, which spawned the superPAC, was hailed by some on the left as the death-knell of democracy [leading to] mega-bucks buying the election through a barrage of brainwashing TV spots.

Weigel characterizes anti-PACers similarly (though, to his credit, he provides quotes):

The super PAC critics aren’t [call them] rotten and unfair. In the words of Democracy Now producers, the PAC money comes from a “secretive coterie” of donors. In the terrific coinage of Mother Jones editors, it’s “dark money,” a Lovecraftian monster that moves from state to state, dissolving the foundations of the republic.

If Citizens United‘s critics were primarily or solely concerned with the prospect that Super PAC cash would lead to election results that would be different than they’d have been without the unleashing of monetized “speech,” I’d have no problem with depicting them as a flock of Chicken Littles. But I think Jane Mayer’s recent, superb New Yorker piece on the matter does a far more effective job in identifying the real specter now haunting the United States.

We’ve no longer only fear itself to fear; there’s cynicism, too:

Lawrence Lessig, the author of a new book on campaign finance, “Republic, Lost,” argues that the Court misunderstood the nature of corruption. A greater peril than obvious, quid-pro-quo bribes is posed by systemic corruption, he says, in which voters regard the whole system as rigged. And the Court, by eliminating almost all the curbs on outside money in elections, has given wealthy donors disproportionate political power, largely in the form of Super PACs and nonprofit advocacy groups.

There’s a first-order problem with Citizens United, one that rests on a first principles-styled objection rather than a more consequentialist critique. I subscribe to it. Simply put, it’s the idea that Foster Friess and Sheldon Adelson should not be able to wield such a grotesquely disproportionate influence over the democratic process. Not because they’ll become secret string-pullers, but simply because it’s unfair. (And as an aside, I believe both moneymen have proven themselves to be quite undeserving of being listened to — full-stop.)

But the second, consequentialist, argument against Citizens United sacrifices none of its power for its pragmatism. 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.

Americans were already deeply cynical about their politics, before Citizens United. But while there was once a means, however feint, to argue that the system is not a dull gloss over what is in essence an elaborate sporting event with dueling oligarchs jockeying over what amounts to most of us as minutiae, the Super PAC order of today renders that optimism not naïve but simply delusional. In the same way people know professional wrestling is fake — even if the role of “winner” is traded back-and-forth between dueling sides — voters will soon believe, if they don’t already, that American democracy is a sham.

It may continue to provide good copy for Wilkinson, Weigel, and me, but the Citizens United decision nevertheless remains, on the whole, a disaster.

[cross-posted at eliasisquith.com]

15 thoughts on “No, Super PACs Are Not Good For Democracy

  1. Lawrence Lessig, the author of a new book on campaign finance, “Republic, Lost,” argues that the Court misunderstood the nature of corruption.

    Elias, while I agree with the overall point of your post, I think this falls short as a constitutional argument. It asks the Court to look primarily at policy, not constitutional structure. Even the “first principles style objection” is primarily a policy-focused one. “Bad outcome” is just not an over-riding constitutional principle–the Constitution allows us to do some really dumb things that will have bad outcomes, and bans some things that will have good outcomes.

    And the Founding Fathers weren’t thinking about how to make democracy work grandly–they didn’t even think of themselves as democrats (small d) in that sense.

    I think CU, however bad it is as policy, was a good legal decision. I think it was the legal decision the Court had to reach to avoid making a policy-based decision. That doesn’t mean it’s a good outcome for democracy, but being a good outcome for democracy is not, I’ll argue, the proper constitutional argument.

    • I understand this viewpoint and don’t deny its legitimacy; but it’s not one I can really accept because I think the point of all this, in the end, is not to construct a monument to eternal principles but to make ourselves a nice(r) place to live. I hope that doesn’t come off flippantly because I don’t mean it so, and there’s a lot to be said against being focused on end-results when it comes to SCOTUS rather than more, for lack of a better word, academic pursuits.

      • I think the point of all this, in the end, is not to construct a monument to eternal principles but to make ourselves a nice(r) place to live.

        I get that, but I shudder at the idea of a court being the ones who determine what nice is, or who turn a blind eye to principles that have worked really really well because at one moment in time a majority thought X would be nice. It’s all well and good when the majority is on your side, but it’s always good to keep in mind what other majorities at other times–even in this country–have done to make the world a nicer place as they saw it.

    • Well, they could have decided the case on narrower grounds. It seems to me that they could have ruled on a (admittedly political) documentary, without ruling on the question of ALL political spending. That’s even the general rule for jurisprudence, to preferentially decide cases on the narrow grounds.

        • I think you’re contradicting yourself here, James. If the dispute at hand could have been resolved on narrower grounds, and the general imperative in judging is to resolve disputes on the narrowest grounds available, then at the least we can say that the justices did not *have* to reach the result they did (the result being not merely whether the decision of the lower court was upheld or not, but all the law-creating reasoning that goes into that result in the written decision), and arguably that they did make a policy-based decision.

          More generally, I think you’re being a bit unfair to Elias by suggesting he’s arguing more than what you’ve very nearly conceded a number of times (can’t be sure – it’s right on the edge). I don’t take him to be arguing what the court ought to have done by its own imperatives, but merely that the result, even if compelled, is regrettable on policy and democratic grounds, which are not out-of-left-field concerns from the perspective of people who have to live in a country shaped by two centuries’ of technological and legal innovations but governed by law made two centuries ago, and interpreted according to estimations of those lawmakers’ “intent” (itself a disputable principle of legal interpretation, but that’s an argument for anther day).

          Is your contention that when courts reach decisions they think are compelled by law but that people feel have odious policy results, that people should just shut up about those policy results and cheer the carrying out of the law? (Please don’t jump down my throat for misinterpreting your argument there – that’s a question about the intended implication of it, not an interpretation. You frequently mistake one for the other and take undue offense as a result.) I don’t see very much of an argument here from Elias that the Court erred as a matter of its mandate, rather simply a statement that the policy results are not to be cheered, when such cheering (not for the compelled application of the law, but for the outcome) was actually happening as cited by Elias in the post, prompting his response in the first place. I read this post as agnostic on whether the CU decision in all its fullness was legally compelled or not.

  2. I may have poor reading comprehension on either your post or Wilkinsons. I agree that he may mis-characterize some of the opposition to the CU case. But isn’t his ending point that due to Occupy PAC and Colbert PAC, etc that normal blokes don’t have to feel superfluous? That we can get involved and compete with the Adelsons of the world not through our fortune but through our numbers? So to your first order critique, wouldn’t the response simply be that Friess et al. won’t wield disproportionate influence?
    Clearly you disagree, but I missed the evidence for your disagreement.

    Also, is it not the case (and it may be, honest question here) that Friess and Adelson could have spent as much money as they desired propping up whatever candidate they wanted, so long as they didn’t coordinate with the campaign) before CU? The initial outrage seemed to be that Exxon would flood the political market, not individuals. Given the volatility of the primaries, I’m not convinced that the individual donors have really helped their candidates in the long run.

    • I didn’t get to your first point (re: Wilkinson’s argument) because the post I felt was already long enough; and because I think the idea is somewhat self-evidently absurd.

      To say that Colbert’s PAC or the PAC that claims to be Occupy-friendly are truly relevant, in the way that Restore Our Future or Winning Our Future have been, is a huge reach. Colbert’s PAC, specifically, was a acerbic act of satire that had no real electoral impact and will be forgotten by most of the few people who knew of it in the first place.

      As to your second question: http://huff.to/ySEmOJ
      Short version: There used to be an individual limit of 5k, CU indirectly ended that. But if you read the link you’ll see that the pre-CU status quo was quite shitty already. Oh and as to whether or not the Super PACs have helped Republicans — I don’t consider that especially relevant one way or another.

      • I suppose one man’s absurdity is another’s call to arms. My interpretation of the Wilkerson piece is that he feels that SuperPACs can be set up by ordinary folks who want to pool their resources to make a political statement. He even ends with an exhortation to ‘get to it.’ Not that Colbert was going to make a difference, but that if he can do it, we all can.

        Thanks for the link – that helped. I didn’t mean to imply that the Republicans as a group are helped. I agree its irrelevant. I meant that individually, I think huge donations make politicians less desirable in some ways. The Gingrich SuperPAC could do a lot with $10 mil, but I think that sized donation worried some folks (my impression – I suspect you disagree) and helped lead to his fall in the polls.

        One other comment – you seem worried about the perception of money in politics. I agree that cynicism about the process is a major concern. Do you think scary articles linking the demise of our democracy to money in politics adds to that cynicism? (I am not at all criticizing you or anyone else who is concerned by the problem or brings it up – but it seems to me that the more we convince ourselves money is a problem, the more the percetion is that it is a problem, so the more we talk about it . . .. . .)

        • Quickly regarding individual donations – even after reading the link – Adelson could have spent as much money as he wanted on election messaging, as an individual, yes? The DC district court means that he can donate unlimited to a third party. I agree that that makes it substantially easier for a billionaire to make an impact, but they could have still spent unlimited amounts beforehand, on their own.

          • “Adelson could have spent as much money as he wanted on election messaging, as an individual, yes?”

            I’m not sure how this would manifest itself outside of the framework covered by either forming a corporation or a Super PAC.

          • As a (very rich) individual, he could hire a director, a camera crew, a script writer, some actors, etc. and create a commercial detailing how bad ass Newt Gingrich’s Moon colony will be. Then he could purchase air time for that add. He has not contributed money to the campaign (in this hypothetical he has not coordinated with it either), nor to a corporation. He is not spending money as a corporation. My claim is that that was all legal pre-CU. It also requires considerably more effort on his part – so I am not claiming that there is no difference pre and post CU. Just that if rich gazilionaires wanted to influence the election with lots of money leading to speech, they were free to do that. (I am still writing all of this with implied question marks – campaign speech legal history is not my subject!) The link you provided just says that he couldn’t have donated unlimited money to a PAC.

          • Hmm. I honestly don’t know enough about this stuff — maybe to get a commercial you have to be registered in such a way or whatever that makes becoming a corporation inevitable…or something — or maybe it might be as you said and, yes, no one would go through all that trouble, though they could. It’s an interesting Q. Inevitably, super wealthy people can have a disproportionate influence. That’s life. It’s about how hard they have to work for it, I think.

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