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Congress Scrambles in Wake of Court’s Campaign Finance Ruling

Posted on Apr 17, 2010
AP / J. Scott Applewhite

By Stuart Whatley

(Page 2)

Lessig is a staunch proponent of the Durbin-Larson Fair Elections Now Act, and for amending the Constitution to give Congress sole power over campaign finance laws.  The Fair Elections Act is essentially the “public option” for electoral fundraising.  It was introduced in March 2009 by Democratic Party Whip Richard Durbin and then-Republican Senator Arlen Specter and would provide voluntary public campaign financing to candidates who reach a certain dollar amount through small contributions of $100 or less.  Once one opts in, he or she receives funding both for the primary and general elections, as well as a few other perks, such as broadcast advertising subsidies.

In an essay shortly following the Citizens United ruling, Lessig praised the Fair Elections proposal as a means for providing “an immediate balance to the deluge of corporate funding that this next election will now see. More importantly, it will give candidates a way to fight that deluge without themselves becoming even more dependent upon private, special interest funding. No other reform—including reforms that try effectively to reverse Citizens United—could be as important just now. No other reform should distract us from pushing strongly to get Congress to pass this statute now.”

Those crafting the Schumer-Van Hollen bill will tell you that the Fair Elections Act has no chance of making it to the president’s desk at this juncture.  Nevertheless, Congressman John Larson, its House-side sponsor and Chairman of the House Democratic caucus, may propose it as an amendment.  With 141 co-sponsors in the House, it’s hardly a pipe dream.  The problem is in the Senate, where it has but 10 co-sponsors (a list that is noteably lacking Schumer’s name).

It’s not politically unreasonable that the Democratic leadership is proceeding cautiously and in narrow terms.  No system is overhauled in a single stroke, and they’re legislating within the parameters of what is admittedly a difficult political environment.  The result is that the Schumer-Van Hollen bill will likely be exceedingly limited in its effect on political spending; and most with whom I spoke regard it more as an obligatory political gesture than anything else.


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Aside from the necessary need to do something, the Democrats’ bill cannot be expected to make a “radical difference in the mix of resources and politics,” Michael Malbin tells me.  Malbin, the Executive Director of the nonpartisan Campaign Finance Institute in Washington, DC, sees the Schumer-Van Hollen bill as good in spirit and worth pushing through to the president’s desk, but, ultimately, as a political necessity with only a few very mild, superficial policy benefits.

At best, the new regulations may theoretically lend slightly more transparency to the paper trail of campaign monies through more disclosure and the Stand By Your Ad provision for CEOs.  But even this is seen as wishful thinking by some.  In response to stricter disclosure rules, Lessig points to Marcos Chaman and Ethan Kaplan’s Iceberg Theory of Campaign Contributions, which demonstrates that special interests don’t actually need to run election ads when the mere threat of doing so will suffice.  As Lessig notes, “those threats are not disclosed.” 

This is also an area where Briffault agrees, telling me, “I suppose that some people think that the disclosure and disclaimer requirements ... will reduce corporate spending.  I doubt that it will.  I think the law does as much as the Supreme Court will allow, but for those who think that corporate spending is the problem, this bill won’t and can’t stop that.”

Most other provisions in the bill are said to fall similarly short.  According to Lessig, the campaign-corporation coordination ban looks good on paper, but is more or less meaningless in the Internet age.  The same can be said for the ban on foreign influence.  As Loyola Law School professor and author of the Election Law Blog Rick Hasen tells me, there is a trade off between having the bill withstand judicial challenge, on the one hand, and having it provide truly effective regulation on the other.  According to Hasen, “if ‘foreign’ corporation is defined broadly, it will be unconstitutional; if defined narrowly, it won’t do much.” 

For many observers, the worst case scenario is that our political leaders will convince themselves that they have adequately addressed what the Court’s ruling in FEC v. Massachusetts Citizens for Life, Inc. (1986) described as the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”

The current political stalemate is quite familiar in the history of the campaign finance debate.  The Roberts Court has made it abundantly clear that free speech trumps all else in its rulings.  As Briffault wrote in a 2008 Brookings Institution essay, describing the Court’s 2007 ruling in Wisconsin Right to Life v. FEC: “WRTL also abandoned [the] view that in campaign finance cases the Court should reconcile and balance free speech values with other concerns like political integrity, the promotion of democracy, and respect for Congress’s efforts to balance these goals. Instead, Roberts’s opinion framed the case entirely from a First Amendment perspective. It was not about the rules governing the corporate role in financing elections but simply ‘about political speech.’”

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By AT, April 19, 2010 at 12:36 pm Link to this comment
(Unregistered commenter)

Proposition 16 is another deceptive ad churned out by the republican noise machine, it’s not about your right to vote but it’s about privatization.Pretty much like Meg Whitman who could distinguish between privet and public goods. And the US chamber of commerce is a criminal enterprise who decide to get into California politics, is it the Chamber of Commerce or the Republican Board of Governors?

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By christian96, April 18, 2010 at 6:17 pm Link to this comment

Gerard—-I’m afraid Rae is correct.  You’ll find
most youngsters vocabulary will contain a lot of
“I, me, mine, and my”, most of which has been
conditioned by the media.  I just heard Pres. Clinton
a few hours ago say, “We can’t demonize congress.”
WOW! He must have read my previous comments.  I’ve
read that he aspires to be President of The New World
Order.  We can’t rule him out for the Antichrist yet!

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By RAE, April 18, 2010 at 2:50 pm Link to this comment

Right you are, gerard. Most of the good things don’t get press.

My guess is that your research into the younger generation will surface few surprises. A MINORITY will be serious-minded, intelligent, insightful and effective individuals in spite of their handicap of having to cope with a hapless education system whose chief purpose is not to educate socratically but to inculcate a societal conditioning intent on producing obedient, non-thinking consumers.

That leaves the MAJORITY whose chief concerns are what to wear, what non-talent “singer” is “way cool” this week, what vehicle to own complete with whatever is the loudest, most annoying muffler, how to get a job that requires few skills and little time but pays the wages of a Senator, how to get their hands on the latest “texting” technology and last, but by no means least, how to alienate almost everyone their parents’ ages and older with their disrespect and self-centered behavior. Notice I didn’t mention plan for the future or contribute to society.

I hope your research proves me dead wrong.

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By gerard, April 18, 2010 at 11:38 am Link to this comment

Dear Rae:  Remember, the good things don’t get the press.  For some time I’ve been thinking I should do some serious research on what’s going on at the younger level. I hear good things and bad things and things impossible to evaluate or predict.  If I decide to take the time to do the work, I’ll put some of it online here in the near future.

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By RAE, April 18, 2010 at 10:54 am Link to this comment

gerard, you have more faith in the younger generation’s ability to “fix things” than I do.

Because the majority of them seem to have zero interest in “history” they are doomed to repeat it.

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By gerard, April 18, 2010 at 9:10 am Link to this comment

Well, Christian96 proves my point:  Talking Armageddon Bible style is no different from talking Armageddon political style.

Yes, we have huge problems, == but Rae, for instance, puts forth good suggestions, as do others from time to time.  So there are things to be done.
And people are not all entirely bad—in fact, at times and in all kinds of interesting ways they have been wonderful and good—individually and in small groups.  There’s a hope.

Maybe the Teabaggers are the lumpen=proletariat beginnings of a significant rumble.  What’s missing?
Intelligent creativity. 

Personally, I’d give a great deal if I could turn back the clock. Unfortunately, I’m halfway through my 90s and almost too old to get out of bed in the morning! Fortunately, I have my brain!  But the rest of me is pretty tired out.  It has to be younger people—younger than Teabaggers—who are so yesterday!  But kids can and will come through, and it’s up to people like you and me to cheer them on, even though our own hearts are breaking.

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By christian96, April 18, 2010 at 6:55 am Link to this comment

For decades pundits have been saying that the New Orleans Saints were so bad at playing football that Hell would freeze over if the Saints would ever win The Super Bowl.

On Sunday,  February 7, 2010,  the Saints won the Super Bowl.

On that same Sunday Washington D.C.  was paralyzed under several feet of snow and the Government was shut down.

Do you think this indicates the actual location of Hell?

Washington isn’t the location of hell but it has
become the home of Satan and his demons possessing
those who reside on Capitol Hill.  Think about it.
If you were Satan and you wanted to have your greatest impact where would you possess people?
Washington, New York, and Los Angeles, the home of
porn, movies, and television programs corrupting
people, especially children, around the globe. I saw
porn shops in Jerusalem when I was there in 1999.
God only knows the influence of those porn shops in
the last eleven years.  Speaking of God.  Have you
noticed the increase in earthquakes, volcanic eruptions, and other disasters lately.  I live in
South Florida.  I know the hurricanes are coming
this season.  When they do I’ll just throw on my
shutters and head out of Dodge.  Strap on your life
vests.  Things are going to get real bad here on earth.

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By ThaddeusStevens, April 18, 2010 at 6:35 am Link to this comment
By Shift, April 18 at 7:15 am
‘The Congress is failing’
I agree completely and wholeheartedly.
All of the things you mention are true and a response to those is the basis of a New Progressive Party’s platform.

1. Environmental purity and human safety should be placed above all other considerations. A toxic environment is resulting in huge increases in health costs. Supposed economic considerations for allowing toxins to be spread around are usually based on rigged accounting methods which fail to look at the long view.

2. Websites like,, and are doing an excellent job in keeping the torch of old school Liberalism alive, (a.k.a. the Democrats like FDR, Eleanor Roosevelt and Adlai Stephenson ). These subscriber supported websites are generally free of commercial sponsorship and offer chance to get at the real news; often, this is via the comments after an article. What the Supreme Court says and whatever the Congress does or fails to do will not change the status of these freely flourishing sources of information.

3. When a homeowner looks at his home and finds an hole in his roof that has been the cause of a great deal of structural damage, he may decide to move out to a different house or build a new one. We as members of a progressive society cannot move to a new continent or planet but we can rebuild the society we currently live in. The place to start this rebuilding is at the municipal and state level.

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By RAE, April 18, 2010 at 6:30 am Link to this comment

The sooner the better, Shift… the sooner the better.

Anyone with half a brain could easily have concluded the economic deck of cards that is Capitalism is guaranteed to collapse at some point. But the greedy sociopaths who claw their way to the top of the various enterprises and who are hauling riches away by the truckload aren’t about to let ANYONE change the system. They couldn’t give a rat’s ass about the millions who are getting screwed in the process.

Too bad there isn’t anyone or any agency with the authority or courage to get a posse together and round up these malignant criminals. But it wouldn’t really matter - before their cells doors slammed shut behind them a new generation of vermin would be chewing away at the cheese. It’s just the way we are.

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By Shift, April 18, 2010 at 3:15 am Link to this comment

The Congress is failing.  The rapid pace of change is growing exponentially while Congress remains ineffective.  Issues remain unresolved or only partially resolved.  The piling up of unresolved problems is leading to one derailing after another.  The foreclosure problem remains unresolved.  The toxic assets remain on the books.  Middle Class insurance premiums are set to escalate significantly.  The bloated military budget is unsustainable yet we continue to fight two wars and increase the number of foreign military bases past the one thousand mark.  Unemployment remains dangerously high.  Tax policy favors the rich.  Climate change continues to degrade.  Super bugs are on the rise while medications to combat them are scarce to nonexistent.  Nano has entered the foods we eat with inadequate labeling or testing effectively making the population unwilling participants in experimentation.  Fresh water is increasingly scarce.  The outcomes of these deficiencies will pile up and eventually overwhelm us.  We are setting ourselves up for collapse.  The triggers are so numerous and the problems so interrelated that one trigger can lead to a serious meltdown.

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By glider, April 17, 2010 at 5:10 pm Link to this comment

All 3 branches of our “representative” government are largely Corporate Whores.  The 4th branch, the corporate owned “Media”, is yet another Corporate Whore serving their Elitist Pimps.  Corporatocracy has been realized.  The only question is how much this may be ameliorated by a pissed off public, if they can figure out what is happening given the circumstances.  The clueless “Tea Baggers” suggest not.

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By RAE, April 17, 2010 at 3:41 pm Link to this comment

I don’t suppose revising the rules as follows would get much play:

1. All bona fide candidates in a constituency would be granted an EQUAL amount of money from the public purse based on the wishes of the population of that constituency.

2. No other funds in cash or in kind, no services or support of any nature may be provided to or used by any candidate beyond the value of the “allotment.”

3. Any free media exposure given to one candidate must be offered to all in an equal amount.

4. No public media may refuse to carry a candidate’s message for any reason except inability to pay for it out of the “allotment” funds.

4. Any individual, group or corporation that provided or even approached a candidate with support of any kind would, upon conviction, be guilty of a criminal offense and subject to severe penalties. For example, no full page ads supporting “your” candidate. However, reason must prevail. If a citizen was asked who he/she supported and why in a sound-bite type interview, OK but no documentaries or other significant productions would be allowed except and unless funded out of the candidates “allotment.”

I’m not a lawyer and likely have left enough loopholes in my “law” to drive a truck through. Nonetheless I hope my intention to provide candidates with a level playing field from the start is clear. Now, what each candidate does with the resources provided is up to him/her. Hell, a candidate could divvy up the cash amongst his/her constituents for all I care. Use it as you wish but you get to use no more… not even your own money.

Far too simple and fair… right?

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By gerard, April 17, 2010 at 2:55 pm Link to this comment

In McChesney and Nichols’ new book “The Death and Life of American Journalism,” they make a strong case for the fact that the Founders (particularly Jefferson and Madison) foresaw the dangers of privately-owned media and were careful to explicitly state that such ownership was in direct opposition to “freedom of the press” envisioned in the Constitution.
  Read the book, but here’s just a small taste relevant to the recent Supreme Court dictat that corporations can legally dominate elections through contributions to candidates—an idea that would have horrified even the most patrician of the Founders.
  “...The one universally accepted premise was that the government needed to heavily subsidize the creation and development of the press if the constitutional system were to succeed.  There was no notion in the early Republic, not a single solitary voice anywhere, that the press should be left to “the market” and that commercial auspices could effectively and efficiently guide journalism as long as the heavy hand of the state remained out of the way… The idea that Americans should roll the dice and hope rich people would find it profitable to produce the journalism required for a constitutional republic to succeed was simply unimaginable….” (p117-18)
  The idea proposed in the book is that government must subsidize a public press so that the people can get enough reliable information to run their government.  This idea seems anathema to us now, when we see what botches government makes regarding the public interest, but it is likely the hidden hand of corporate money is causing most of the botches for which government is taking the fall.
  At any rate, we need to recognize how far from “liberty and justice for all” the domination of media by corporate power has taken us. The Court’s recent ruling will vault “free speech” into outer space!

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