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Money, Politics and the Roberts Court: Seventh Game of The Court's Plutocrat Series*

By George Flower  Posted by George Flower (about the submitter)       (Page 1 of 6 pages) (View How Many People Read This)   2 comments
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  1. Government by the wealthy.

  2. A country or society governed in this way.

Big Bang Theory: A Philological Preface

One of the secrets of anti-corruption specialists is that piecemeal, incremental, partial reforms actually make matters even worse in a systemically corrupt environment. A Swedish scholar was curious about how his own country emerged from its period of extreme corruption to become the paragon of integrity and equality it is today. His research showed that cleaning up political corruption took a comprehensive set of reforms that amounted to a "big bang" rather than "incremental policies which ... are likely to worsen the problem and make corruption and similar practices more ingrained." Bo Rothstein, Anti-Corruption: A Big-Bang Theory (2009). Prof. Rothstein reasoned that systemically corrupt institutions, dominated by corrupt networks, typically demonstrate considerable skill in corrupting those very tactics and systems deployed to fight corruption.     

If the opinion of its citizens is to be believed, contemporary politics in the United States has produced just such systemically corrupt institutions. Only 28% of voters say they think that most members of Congress are not corrupt. The term "corrupt" has many meanings. With respect to the most narrowly specific meaning of corruption, 60% think most members of Congress sell their vote, while 69% think members will "break the rules" for their contributors.

Bribery is the crudest way for money to influence politics. When the polling question is phrased more inclusively so as to reach the most quotidian form of corruption, that which the (pre-Roberts) Supreme Court defined as "undue influence on an officeholder's judgment," FEC v. Beaumont, 539 U.S. 146, 152-54 (2003), the answers show even broader agreement. The country universally (95%) understands that big money enters politics for the sole purpose of the large financial returns that it earns by controlling government, and 86% think this control is sold by politicians even when it violates the national interest. The public understands the economy of undue influence. This explains the public's almost universally low regard for Congress and the low consent of the governed generally.

To perpetuate this widely understood systemic corruption of the US government, it is only necessary to assure that any notion to reform it remains partial and incremental, commonly addressing just a few tiles of the larger mosaic and certainly not the whole ugly picture. Nevertheless such partial reforms are useful for maintaining an appearance that there is some sort of system in place to deal with political corruption, though, due to its complexity, only specialists can actually understand that system.

This piecemeal approach to anti-corruption relies on its own specialist language for slicing and dicing into separate pieces the otherwise fairly straightforward subject of banning private interest money from politics. The specialized verbal distinctions are designed to facilitate regulation of some pieces but not others. The Supreme Court has been the principal overseer of this fluctuating sorting process, assuring that some, actually since 2006 many, crucial pieces are omitted from anti-corruption laws. For example, in Citizens United the Supreme Court reversed itself to hold that the Constitution prohibits Congress from being concerned about the "undue influence" kind of corruption, authorizing solely the prevention of outright bribery.

Many distinctions in this area of law appear technical and complex, enough even to intimidate lawyers who are not initiates in campaign finance law. The purpose of this preface is to define a few of these concepts to show they are not intimidating so much as they are themselves a large part of the problem. Just as there is no rational explanation -- other than to perpetuate the corrupt system -- for the Roberts Court to discover in the Constitution, after more than two centuries, a prohibition on state and federal power to combat influence peddling, although that is the most common form of political corruption, some of these distinctions lack a rationale capable of withstanding close analysis. They were created to assure that corruption will continue under an apparently purposeful patina of such complexity as to be impenetrable by the wider public, which allows for the political cover of occasional "little bang" reforms that "are likely to worsen the problem" rather than solve it. How both of the currently proposed reforms, FENA and DISCLOSE, fit this pattern is a subject for another day.

Any close analysis of the Supreme Court's attack on campaign finance regulation must use this slicing and dicing terminology, no matter how fundamentally meaningless and deliberately obfuscating it may often be. To reduce the intimidation factor, the following short glossary of campaign finance terminology pairings is provided here for easier navigation of the article that follows.

          1. "Expenditures/contributions": makes a distinction between principal and agent. The contributor is the principal who gives money, and the agent is the one who receives and spends the contribution. Agents -- the candidate, the party and their respective committees -- have no practical limits on the boodle they can receive and their ensuing expenditures of it. But the principal does have limits on the contributions that can be made to such agents.

    2. "Independent/coordinated": if the principal instead makes "expenditures" for issuing her, his or its own electioneering communication s those "expenditures" that are independent of the candidate's campaign (e.g. Super Pacs) are similarly unlimited, unless they are coordinated with the campaign. In the latter case "expenditures" by principals are regulated as if they were "contributions."

  1. "Anti-distortion/bribery": Notwithstanding the Declaration of Independence and the equal protection clause of the 14th Amendment, the Roberts 5 forbid Congress from making any campaign finance law that suggests even a partial motive to make the "free speech" of citizens with respect to their elections more equal or, well, free. According to the Roberts 5, legislators must never seek to prevent the distortion of political speech, and the policy it seeks, to prevent those who can buy the biggest loudspeaker from drowning out everyone else. The Supreme Court found in the two words "free speech" an intention by the founders to only permit Congress to regulate money in politics so as to prohibit bribery and not to make the production of election communications more equally available to citizens. Somewhere in those two words the Roberts 5 seem to have found a provision appointing themselves election commissioners, although other provisions of the Constitution (Art. I, 4&5) expressly gave the power "to judge" the manner of holding elections solely to legislators.  

  2. "Base/aggregate": there are various financial limits on the size of each separate base "contribution" made by principals to various kinds of agents. There is also a secondary aggregate b iennial limit on the sum total of those base "contributions," which is less than the sum of its parts. Aggregate limits constitute the latest front for the Supreme Court's annual offensive against the power of legislatures to maintain election integrity.   


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