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Entries in Citizens United (1)


Unequal political influence and citizen nonparticipation are the unforgivable sins of American governance

By Jeff Johnson

Our Constitutional Framers left a number of serious political inequality issues to be sorted out by later generations. One was slavery, a problem it took a civil war to resolve. Another was who should be allowed to vote, a right gradually expanded to include non-property-owning, non-white, non-males.

Yet another, and the subject of this article, is the issue of unequal political influence. Notwithstanding the sentiment expressed in the Declaration of Independence that All Men Are Created Equal, the vast majority of people in this nation have little influence over their government compared to those relatively few that exert disproportionate power.

There are two causes of this inequality, and the Occupy Movement is concerned with both. The first is that most people choose not to participate in their own governance; the second is that our campaign finance and lobbying systems allow a relatively few people to exert political influence well beyond their numbers.

The People Have Abdicated:

How to Engage Citizens in Their Own Government

Regarding nonparticipation as a cause of political inequality, a pillar of the Occupy Movement is the attempt to include people in the process of self-governing, through General Assemblies, Working Groups, and the leaderless organizational arrangement has been so derided. Occupy has, in its own political micorosm, created a structure, which if expanded on a national scale, could help solve the lack of participation in government that otherwise makes having a democracy irrelevant.

But that is a big if. To accomplish meaningful participation, the following must be overcome: people don’t care, they feel helpless; they don’t have time; and they are not informed.

The People Don’t Care, But They Can Be Inspired

People need to be inspired. Individuals like Tyler Crane, who organized Occupy Kansas City, and Mary Lindsay, who leads the local chapter of Move to Amend, are good examples who, through their immense energy and optimism, inspire others to get involved and make a difference. They are like missionaries of democratic action to the masses. We should assist and otherwise support such people who, because they are ordinary citizens and are impassioned about being involved in the community, can be highly effective at inspiring legions of otherwise complacent people to become more active citizens.

The People Feel Helpless, But They Can Be Empowered

People are convinced that they cannot make a difference; that they cannot compete with corporate political marketing. This contributes to a sense of cynicism, and discourages citizen involvement, which becomes a huge, self-fulfilling prophecy and a powerful gift from the people to the ruling class. Ratification of a constitutional amendment that would limit corporate control of campaigns will help greatly, and by sheer numbers, the people should be unstoppable. But modern political habits undermine the power of the people in two ways: divisiveness, and undervaluing local political involvement.

Unity vs. Division

Division tends to take precedence over unity. Political “discourse” modeled by media talking heads is factional at best and outright hateful at worst. And this counterproductive method is so pervasive through American politics that even groups that should unite do not because they are too stubborn to look past their own views.

If, for example, the Tea Party and Occupy were truly savvy, they would rush to align on the areas where they agree, get those things accomplished, and sort out the rest later, in the same manner that the Framers found enough common ground to write a Constitution while setting aside the trouble spots for the future. And yes, there are areas of agreement between Tea Partiers and Occupiers.

Ideally, our culture should establish a common sense rule of courtesy that every political discourse end by focusing on a point of agreement. This would reduce the animosity between people of differing views, and it would serve to reinforce the common ground. Sounds like pie in the sky, unless one thinks of it as part of a civics curriculum in school. Along with teaching how the three branches of government interact, we would teach young people how much more productive politically it is to always find common ground, instead of focusing entirely on where we differ.

Local vs. National

Another modern political habit that undermines the power of the people is the unfortunate tendency to undervalue local political action, especially as compared to national politics. People have limited time, and directing too much attention to the national spotlight detracts from the input people might otherwise have on their local scene. The Republican presidential primary contest is essentially American Idol, an apparently highly entertaining spectacle, but largely disconnected from the political reality of people at home.

When Supreme Court Justice Steven Breyer spoke recently in Kansas City, he did not mention the Citizens United case as a threat to democracy. Nor did he emphasize the importance of voting for President. His concern was that people need to be “involved in their community’s life.” “Otherwise,” he said “the document, the Constitution, will not work.”

To ignore this warning, and to focus on division instead of unity, is to self-dilute to ineffectiveness the power that should be in the hands of the people.

The People Don’t Have Time, But They Can Be Accommodated

As admirable as is the dedication of local activists Crane and Lindsay, it is not reasonable to expect all citizens to devote as much time and energy to community action. Many people have very little free time available. How can these people participate meaningfully in their community’s life? A solution could involve tools such as social media and remote video in order to streamline involvement. Perhaps it is not practical to expect people to physically assemble in order to participate in the political process. The technology available to us, combined with the motivation and innovation of activists, should produce a method for large percentages of people to participate together, but remotely, in making decisions that affect everyone.

The People Are Not Informed, But They Can Be Taught

People cannot effectively participate in self-government if they are not properly informed on the issues. Civics instruction in American schools is inadequate. This should be a renewed priority. Students should understand the importance of involvement, and they should understand how the government is supposed to work and how they can participate.

Occupy should continue with Teach-Ins. It is a fantastic way to engage people in the process of becoming an informed citizen. As the Movement continues to organize, the Education Workgroups should increase in importance, and certain individuals should be tapped to regularly instruct. As people join, they often ask how they can contribute. One way to engage each person that wants to contribute is to give them the assignment of becoming well-versed enough on a subject of local political importance that they can instruct others on that issue. That way, part of an involvement in the Movement is an ongoing process of teaching each other.

Political disenfranchisement in this country is largely self-imposed. The solution is greater than legislation, Constitutional Amendments and court rulings. The solution to political inequality requires getting citizens involved in the political process.

Unless people participate in their community, and therefore know what the community’s needs and resources are, it will not matter whether corporations can or can not spend unlimited amounts to influence elections. We complain while the Supreme Court carefully protects the Freedom of Speech of Corporations. Yet, through complacency, we waste freedoms we are born into while Syrians die fighting against real repression.

The People Have Been Usurped:

Time to Counter Improper Influence in Government

Occupiers complain that too much wealth is controlled by too few people; that this extreme inequality of wealth gives unfair political advantage to the rich; and that corporate money and lobbyist efforts drown out the input of ordinary citizens in the political process. The perception by citizens that they cannot compete with corporate political marketing contributes to a sense of cynicism, further marginalizing citizen involvement.

The problems are stated accurately, but the solutions are not self evident. Regarding solutions, many within Occupy say that we should “get money out of politics”, and that we should – through a Constitutional Amendment – undo the Supreme Court decision of Citizens United and its precedent, that we should establish that “money is not speech” and “corporations are not people.”

The first idea – getting money out of politics – sounds appealing, but in reality is not a solution. The second – rejecting the Citizens United decision and its precedent through Constitutional Amendment – is a very good idea, but on its own would not solve our campaign finance and political influence problems.

There is no doubt that an unrestrained flood of money into elections is unhealthy for American democracy. But to say that we should fix campaign finance by “getting money out of politics” is as useful as saying that we should end obesity by getting calories out of food. Just as every sustainable diet still involves eating, so too, politics will always involve money. If Citizen Joe puts up a couple of signs in his yard saying “Vote for Schmoe,” he is spending money to support a candidate, and this should be protected speech. It should also be protected speech when a candidate wants (or his supporters want) to collect money so as to put up a bunch of signs saying “Vote for Schmoe.”

There is no good reason to prohibit reasonable political spending. The hard part is finding the healthy and workable middle ground between good-for-democracy spending and an unlimited torrent of corrupting cash.

Interestingly, the “middle ground” that Missouri has staked out allows unlimited contributions to candidates, but requires disclosure of who made the donation and where they work. So when potential Republican candidate for Governor David Pence received a $100,000 contribution last month, Missourians could readily see, via the state’s online database, that the check came from Capital executive Robert O’Brien. Those arguing in favor of Missouri’s unlimited donation scheme say that the money would get to the candidates secretly if limits were in place. This way, they argue, citizens know who is giving and how much, and they can evaluate the candidate based on his disclosed donors.

This arrangement that Missouri has settled on is presumably perfectly acceptable to our Supreme Court. Whereas, when Vermonters attempted to limit campaign donations, the court decided that their limits were too low and struck down the statute.

Congress and the states have over time made various attempts to strike a balance in reforming campaign finance. The courts have frequently interfered with those efforts. The recent Citizens United case is one of the most disruptive interferences, and one result is a chorus of proposals for a Constitutional Amendment to override this judicial limitation on campaign finance reform. Citizens United struck down a provision in the Bipartisan Campaign Reform Act (also known as the McCain-Feingold Act of 2002) that prohibited corporations from using their treasury funds to pay for broadcast ads for or against a candidate within 60 days before an election (or within 30 days before a primary).

The modern lead-up to this controversy began in 1974 following the Watergate scandal. Congress passed the Federal Election Commission Act, which placed limits on political contributions and on campaign spending. In 1976, the Supreme Court in Buckley v. Valeo let stand the FECA contribution limits, but struck down the spending limits because of free speech considerations. The Court also invalidated regulation of money spent on ads that do not explicitly suggest a vote for or against a candidate, known as “issue ads.” The political result of this “money equals speech” doctrine was that eventually large amounts of unregulated money were being spent during campaigns on ads that were obviously for and against certain candidates, but since the ads did not use specific phrases like “vote for,” they were legal. McCain-Feingold was passed in part as an attempt to close this “soft money” gap in campaign regulation.

In declaring this part of McCain-Feingold unconstitutional1, the Supreme Court chose not to distinguish between corporations and actual persons for the purposes of free speech in campaign spending. This case did not establish corporate personhood, but broke from a line of precedent that did allow for limitation of corporate intrusion into elections. And although it is true that getting money completely out of politics is impractical, and not even desirable, it is absolutely true that getting corporate money out of politics is critical. Justice Stevens wrote in his Citizens United dissent that “the Court’s opinion is…a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

Now, what is needed is an entirely new framework for financing elections if we want to level the playing field for potential candidates, and an entirely new set of rules restricting lobbying if we want to provide for meaningful citizen input in the political process. A campaign finance concept similar to what is known as Clean Elections is needed, and strict anti-revolving-door rules should be adopted, but this will require more than a Constitutional Amendment that overrides Citizens United, or that merely eliminates corporate money from elections.

This does not mean that it is a waste of resources to support, for example, Move to Amend, an organization promoting a Constitutional Amendment to declare that money is not speech and that corporations are not people. To the contrary, it is important that everyone support this and all efforts working toward ending political inequality imbedded in our flawed campaign finance system. However, a wider solution is needed, way beyond just addressing the Supreme Court’s limitations set by Citizens United v. FEC and Buckley v. Valeo.

Fn. 1. With the exception of Thomas’ idiotic partial dissent, at least the majority in Citizens United did not disagree with every portion of McCain-Feingold at issue in the case.