Medium 9781626565760

When Money Talks

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Special-interest money is destroying our democratic process. But now that the Citizens United decision has thrown out campaign spending limits as abridgments of free speech, Americans want to know what they can do about it. Derek Cressman gives us the tools, both intellectual and tactical, to fight back.

There's nothing inherently unconstitutional in limiting the amount of speech, Cressman insists. We do it all the time—for example, cities control when and where demonstrations can take place or how long people can speak at council meetings. Moreover, he argues that while you choose to patronize Fox News, MSNBC, the New York Times, or the Wall Street Journal, political advertising is forced upon you. It's not really free speech at all—it's paid speech. It's not at all what the Founders had in mind when they wrote the First Amendment.

Cressman examines how courts have foiled attempts to limit campaign spending, details what a constitutional amendment limiting paid speech should say, and reveals an overlooked political tool concerned citizens can use to help gain the amendment's passage. Seven times before in our history we have approved constitutional amendments to overturn wrongheaded rulings by the Supreme Court—there's no reason we can't do it again.

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8 Chapters

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1 Enough Is Enough

ePub

How and Why We Have Limited the Duration, Volume, and Location of Speech

I rise on behalf of the vast majority of the American people who believe money is not speech, corporations are not people, and government should not be for sale to the highest bidder. We demand that you overturn Citizens United.

—Kai Newkirk, addressing the Supreme Court, which promptly shut him up

The Supreme Court had never seen anything like it. On February 26, 2014, a young man in the audience stood up and had the temerity to speak his mind to all nine justices. The Court bailiffs promptly arrested Kai Newkirk—they silenced his speech so that other people could be heard. And they were right to do so.

The Supreme Court strictly regulates who is allowed to speak before the Court and how they must do it. It’s not enough to be a lawyer. An attorney must be recognized as a special member of the bar of the Supreme Court of the United States. Attorneys must be nominated by another member of the bar and confirmed by the Court itself before they can utter a single word. Regular citizens are forbidden to speak.

 

2 If Money Is Speech, Speech Is No Longer Free

ePub

The Difference between Paid Speech and Free Speech

Money is property. It is not speech.

—Supreme Court Justice John Paul Stevens

Back in 1775, Thomas Paine had a problem. The revolutionary agitator needed to rouse American colonists into such fervor against England that they would declare independence and risk their lives in a war. But how could he get his message out across such a large territory? He couldn’t have afforded TV ads even if they had existed at the time. Paine solved his problem by writing Common Sense, a 79-page pamphlet that swept through the colonies and solidified support for the American Revolution.

Campaign reform opponents have used Paine’s pamphlet as an example of political speech that the British government would have censored if it could. They claim that campaign finance laws would have banned Common Sense and prevented the American Revolution.38

But here’s where the critics are wrong. Paine sold his book. He wasn’t paying for people to read his words—readers were paying to buy the book.39 Although Paine gave away his copyright and donated his royalties to the revolutionary cause, Common Sense was not America’s first political ad campaign. Rather, it was the most significant early use of the free press. It is that kind of free press that the Framers of our Constitution sought to preserve in the First Amendment, not political campaign advertising.

 

3 Stupidity, Inequality, and Corruption

ePub

Three Good Reasons to Limit Paid Speech

The collective IQ of Congress goes down every two years.

—Chuck Todd

Imagine if you tried to make a difficult decision using only 4 percent of your brain capacity. You’d probably do some stupid things. Maybe you’d take up smoking cigarettes in an effort to improve your health. There was a myth for decades that we human beings actually use only 10 percent of our brains, but scientists have debunked that. A healthy person uses 100 percent of her brain—and even then we still make mistakes.56

Now imagine a society that only makes use of the collective wisdom of 4 percent of its citizens. Would that society make smart public policy decisions? That’s what the Supreme Court has done by letting big money talk louder than the rest of us.

Roughly 4 percent of Americans contribute to a political campaign in any presidential year, but even that statistic grossly overstates participation. Most of the money comes from only the 0.2 to 0.4 percent of Americans who make a contribution of $200 or more to a federal candidate in each two-year election cycle, and this percentage has been shrinking over time.57 If these are the only voices voters hear, we are missing out on the collective wisdom of 99.6 percent of Americans. That’s a lot of speech that we aren’t hearing.

 

4 Who Broke Our Democracy?

ePub

How Courts Have Struck Down Limits on Money in Politics

The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the first amendment.

—US Supreme Court, Buckley v. Valeo, 1976

If money is speech, as the Supreme Court says, then more money must be more persuasive speech, and those ideas with the most money behind them will tend to prevail. This is un-American.

—US Senator Barbara Boxer

When Senator James Buckley lost a political battle on the floor of the Senate in 1974, he didn’t get mad. He got even.

Senator Buckley strongly opposed the new campaign finance rules passed by Congress in the wake of Watergate. When President Gerald Ford signed the Federal Election Campaign Act (FECA) of 1974 into law, Buckley followed a great American tradition of sore losers.

He sued.

But before telling that story, let’s first meet James Buckley.

 

5 Repairing Our Republic

ePub

How the People Can Overturn the Court

[Chief Justice] John Marshall has made his decision, now let him enforce it.

—President Andrew Jackson

Unelected judges have trampled our right to determine what corrupts and how we want to govern ourselves. They tell us we cannot give every voice equal time in public debate but that we are required to let a few billionaires drown out the rest of us. This issue goes beyond campaign contributions and spending; it is a question of sovereignty. Will we allow ourselves to be conquered from within by an elite group of billionaires and their judicial accomplices?

If not, what can we do?

This chapter will explore several ways to overturn a wrongheaded court ruling. Although all approaches have merit, organizing support for a constitutional amendment is our best opportunity, with the most permanent effect, to really get big money out of politics once and for all. The amendment fight could also build a citizens movement capable of winning a whole range of reforms to restore representative democracy to the United States. For example, the effort around the Equal Rights Amendment succeeded in building a movement that won more equal pay for women, more women in elected office (although still not enough), and women serving in the military even while failing (so far) to change the text in our Constitution.

 

6 Magic Words

ePub

What Should a Constitutional Amendment Say?

We do not need magic to transform our world. We carry all of the power we need inside ourselves already.

—J. K. Rowling

When James Madison wrote the Bill of Rights as our first ten amendments to the Constitution, he didn’t attempt to craft legislation that would cover every foreseeable situation. Rather, he laid out broad values about what our government could and could not do.

Similarly, an amendment that reins in the federal courts from voiding laws that limit campaign spending need not detail every future scenario. Rather, it must establish broad values that legislators, enforcement agencies, and courts will adhere to.

This chapter will examine several past proposals for a constitutional amendment to get big money out of politics and suggest a new one as well. These words could just as easily be incorporated into a court ruling as inserted into a constitutional amendment. Either way, the goal is to establish clear constitutional principles to guide future legislation and litigation.

 

7 Instructions for Mission Impossible

ePub

How to Pass a Constitutional Amendment When Incumbents Don’t Want One

First they ignore you, then they ridicule you, then they fight you, then you win.

—Attributed to Mahatma Gandhi

It’s one thing to amend the Constitution with something that both the public and incumbent legislators want. The Twenty-sixth Amendment, which lowered the voting age to eighteen, took only five months to pass Congress and be ratified by the states.

It’s different when incumbents fear an amendment goes against their personal interests. For example, the Twenty-seventh Amendment, which prohibits a current session of Congress from raising its own pay, took 203 years from proposal to ratification.

Our mission, should we choose to accept it, is to force incumbents to do something they ordinarily wouldn’t do. Our history can tell us how.

Incumbents weren’t sure what would happen if they expanded the electorate by allowing women to vote. When Alice Paul got tired of waiting for Congress to act, she organized a picket outside of Woodrow Wilson’s White House in 1917. Police arrested the protesters for “obstructing traffic” even though they had stayed on the sidewalk. In prison, wardens placed Alice Paul in solitary confinement. She organized a hunger strike and galvanized public support for the prisoners, who became known as the “iron-jawed angels” for refusing to be force-fed. Paul’s actions elevated the issue to a national crisis and President Wilson finally came off the fence and publicly supported women’s suffrage. A year later, Congress would propose the Nineteenth Amendment.

 

8 Halfway Home

ePub

We’re Further Along Than You Think

The darkest hour is just before dawn.

—English proverb

It can be discouraging to realize that it often takes decades to overturn the Supreme Court. The good news, which we have forgotten to celebrate, is that we are already forty years into that struggle.

The first stage in repairing our Constitution from the damage of Buckley and Citizens United is for the American people to rouse ourselves out of the slumber of normal politics and enter a phase of extraordinary political engagement. Once we have corrected the structural flaws big money has wrought, we’ll be able to get back to our private lives.

This first step—raising awareness—is the most time-consuming part of the amendment process. Thankfully, we are fairly well into this stage. Due in part to campaign disclosure laws, the media’s muckraking, and follow-the-money groups that regularly churn out data linking campaign donations to particular issues, the American public is thoroughly aware that big money in politics is a problem. That awareness has bred disgust and cynicism, but it is only now reaching a point of anger and action.

 

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