February 3, 2012
This is campaign finance orthodoxy in early 2012: Corporations are people, money is speech and democracy is when my billionaire whups your billionaire.
Comedians have lampooned the silliness of the first strained equivalence. You know: We’ll accept that corporations are people when Texas executes one, or when Mitt Romney is charged with mass murder for serial dismemberment of his adopted children as CEO of Bain Capital.
But maybe you hold tightly to the idea that money is speech. Maybe you think Jack Abramoff went to prison for something he said to somebody. Or maybe you think former congressmen William Jefferson and Duke Cunningham went to prison because of something that was said to them.
I think Justice John Paul Stevens had it right years ago: “Money is property; it is not speech.”
So, if contemporary politics is about property rights, maybe regulations that prevent a person, corporate or otherwise, from hiring all the politicians he can afford are takings. That’s no more preposterous than saying money is speech. All things are monetized in America, including the quaint old notion of democracy.
Still uneasy? Don’t worry. No less than a 5-4 majority of the highest court in the land has explained away the peril of corruption posed by multi-million-dollar campaign supporters. In their view, a candidate is independent of the millions spent by his campaign patrons, as long as those millions are invested with the manager of his last campaign and not the manager of this year’s campaign.
I think most of us recognize that as pious bologna. Newt Gingrich did until Sheldon and Miriam Adelson changed his thinking with $10 million donated to the SuperPAC Winning Our Future.
The Center for Responsive Politics reports that there was a total of $31 million in independent spending in the 2002 federal midterm elections. By the 2010 midterms, independent spending had grown to $489 million, and the Colorado senatorial campaign alone saw nearly $37 million in independent spending.
In Michigan’s three hotly contested congressional races in 2010, there was $30 million spent, $19 million by third-party groups. Where there is true competition, the candidates’ role has been shrunk dramatically.
At the dawn of the age of the independent spenders in the 2004 presidential race, the vehicles for independent spending were fully disclosed political party committees and 527 committees. The Center for Responsive Politics reports that more than 98 percent of independent spending was disclosed by its source in 2004.
But after Citizens United invited corporate actors to be full participants in campaigns and elections, 501(c)(4) and 501(c)(6) organizations became favored fund-aggregating vehicles and the percentage of independent spending that was disclosed by its source dropped to 71 percent in 2010. Given the Federal Election Commission’s lack of interest in accountability, we should expect the volume of independent spending to go way up in this presidential election year, and the percentage of that spending that is disclosed by source to drop.
So much for transparency and accountability.
Michigan elections pioneered the practice of independent spending by undisclosed campaign supporters years before Swift Boat Veterans for Truth was a twinkle in the eye of Houston developer Bob Perry. The 2000 Michigan Supreme Court campaign had more independent spending than candidate spending and most of it was off the books. My research in the public political files of Michigan television broadcasters and cable operators has uncovered $70 million in candidate-focused television advertising from 2000 through 2010 that was completely outside the state’s campaign finance reporting system.
Standards of transparency and accountability hit rock bottom in 2010 when the Supreme Court, gubernatorial and secretary of state campaigns all registered 50 percent, or less, on the Dashboard of Campaign Finance Accountability (download). The attorney general campaign was a rather poor high point, with 55 percent of campaign spending disclosed.
We may not be able to claim that we invented the idea of a race to the bottom, but I’m pretty sure we won.
Against this sordid backdrop, it was a note of hope to hear Governor Snyder declare during his recent State of the State Address that he sees a need for ethics, lobbying and campaign finance reform. He even articulated a specific proposal: We should have more frequent campaign finance reporting.
Coming as it did, at the end of a 14-month campaign finance reporting hiatus for state officeholders, this idea should be self-evident. After all, shouldn’t citizens have a right to know which interest groups are giving money to public officials while the donors’ public policy interests are under consideration, not long after the fact? It certainly wouldn’t be an onerous regulation to require all political committees — candidate committees, party committees and PACs — to report at least quarterly, in addition to established pre- and post-election reports.
That should be a starting point. Next, the governor and legislature should address the shameful gap in campaign accountability that has allowed $70 million of campaign television advertising to go undisclosed.
Any mass media communications that include the name or image of a candidate within the months preceding an election should be reported, and the donors who provided the money should be identified, regardless of whether the communication contains words of “express advocacy.” In the lesser noted aspect of the Citizens United decision, an 8-1 majority of the Supreme Court made an unambiguous statement that such a disclosure requirement is constitutionally permissible.
If there is still energy and will for one more item on the starter list, I’d suggest that the governor propose and the legislature affirmatively dispose of a requirement for more thorough lobbying disclosure. The Detroit International Bridge Company spent $6 million in 2011 for television ads telling viewers to contact the governor and their legislators to oppose a new public/private bridge between Detroit and Windsor. Yet, the DIBC isn’t even registered as a lobbyist.
Maybe DIBC officials didn’t register and report that activity because the lobbying was indirect. That is, they told viewers to lobby officeholders instead of speaking to officeholders directly. If the law really allows nondisclosure of lobbying that includes a bank-shot, our law needs to be fixed — pronto.
I think we’ll get real momentum in reinventing Michigan after we see some serious accomplishments in reinventing Michigan politics. I admire the governor’s interest in transparency and accountability. Even if interest groups don’t, I think most citizens do.