How a MISTAKE sold off our democracy to the highest bidder
Well that was fun!
I made a video recently for a contest put on by the kind folks at EqualCitizens.us. There are some rough edges with pacing and animations, but overall I am pretty proud of how it came out. I have a couple other ideas for videos I may try. That was quite a lot of work, but I imagine that I can save myself some work by planning my scripts a little more carefully in the future. I like the fact that it feels personal, though.
I have reproduced (approximately) the script below with some added references for convenience. Hope you enjoy and learn something!
Annotated script
Legal experts at Harvard believe that a mistake in our legal code has allowed billionaires to unfairly influence our elections for over a decade. Let’s talk about what happened and what we can do to fix it.
No doubt you’ve heard of super PACs.
A loophole for limits on the number of donations that can be made…
Super PACs have really enabled a supercharging of giving by the extreme wealthy.
These private special interest groups collect money from individual donors and then used them to make what are called independent expenditures to campaigns. But more on that later.
Their superpower comes from the fact that there are basically no regulations on the type or amount of money that individuals can give to these organizations. By allowing billionaires to make unlimited contributions, Super PACs have caused the amount of outside money spent on elections to skyrocket since their establishment in 2010. (Click through for more information)
The landmark decision Buckley v. Valeo, in 1976, ruled that contribution limits constituted an abridgment to an individual’s right to free speech, but that these regulations were appropriate in the interest of
…the prevention of corruption, and the appearance of corruption, spawned by the real or imagined coercive influence of large financial contributions.
This was a huge step forward for campaign finance reform. But what Buckley effectively did was establish a two track system for individuals who wanted to spend money on a campaign. In the first, the individual simply gives the money directly to the campaign, and the campaign can use that money at their discretion. This type of expenditure is subject to FEC regulation.
The other track is to make an independent expenditure on behalf of, but critically not in consultation with, the campaign. This insulation from the management of the campaign was given as the justification in Buckley for why campaign contributions should be limited, while independent expenditures should not. As long as coordination between these parties was disallowed, the court reasoned, there was no justifiable reason to limit an independent contributor’s speech.
Eventually, an organization called SpeechNow came along that intended to collect individual contributions that were going to be used only for independent expenditures. This was brand new, so went to trial in a case SpeechNow v. FEC.
What’s important to notice here is that this case isn’t actually about whether independent expenditures can be limited. Buckley had already ruled that they couldn’t! What this case hinged on was the question “Are contributions to super PACs independent expenditures and thus immune from campaign finance regulations?”
The judge on the case in the D.C. Circuit Court of Appeals, Judge Sentelle, looked to another huge decision happening at the time: Citizens United. Under this highly contentious ruling, the Supreme Court decided that companies have the right to free speech. Thus, Sentelle reasoned, since SpeechNow was an organization that was engaging in legally protected speech, the payments must be valid! So case closed!
[Since] independent expenditures do not corrupt…, contributions to groups that make only independent expenditures also cannot corrupt…
Except this characterization of super PACs isn’t quite accurate. In our scenario, the only ones taking part in expenditures directly are the campaign and the super PAC. And they’re under heavy scrutiny to ensure that they are indeed independent. But a contribution from an individual to a super PAC is questionably an expenditure. And even if it is, it doesn’t meet the standard of independence we expect between super PACs and campaigns.
In effect, what SpeechNow did was create a massive incentive for quid pro quo corruption. But this is exactly the kind of perverse incentive that the Buckley court used to justify campaign contribution limits.
What’s more, Senator Menendez of New Jersey, famous gold bar afficionado, was brought up on charges for corruption before; this time, for precisely the kind of charge that SpeechNow asserts can never happen. In the case, it was alleged that Senator Menendez had, among a slew of other charges, accepted a $300,000 bribe in exchange for advocating for a medical billing procedure that US Health and Human Services employee Jonathan Bloom felt compelled to testify:
it was [the Centers for Medicare and Medicaid Services’] policy not to pay twice for a drug purchased only once.
So fun anecdote: the person who actually paid the bribe, Solomon Melgen, an ophthamologist out of Florida, was sentenced to a sixteen year sentence for Medicare fraud before scoring a last minute pardon from Trump. But there’s no way he bribed this guy…. But…
In the Menendez ruling, the presiding judge includes a section titled “Citizens United Does Not Bar the Prosecution of Bribery Schemes Involving Contributions to Super PACs” where they write
Here the Government alleges that Defendants engaged in a quid pro quo bribery scheme, not that either defendant violated campaign finance regulations. In other words, the charges in this case concern bribery, not political speech.
But if a $300,000 super PAC contribution can result in corruption, that must mean that contributions to a super PAC are fundamentally different from independent expenditures. Therefore, the pivotal deduction in the SpeechNow decision is fundamentally flawed.
Welp, a landmark decision that has massively impacted our political landscape for over a decade contains an essential flaw. So what do we do from here? Vitally, SpeechNow was decided at the district court level back in 2010 and was never successfully appealed to the Supreme Court. But now is its time.
Ron Fine, legal director for Free Speech for People, and Lawrence Lessig, the Roy L. Furman professor of law at Harvard, have worked tirelessly on campaign finance reform and protecting democracy, and believe that this line of reasoning could provide a realistic path forward for getting big money out of politics.
What we need now is to get the word out. So share this message with your friends and let them know it’s time to get big money out of our democracy.
