Well, perhaps we now know at least one reason why Manhattan real estate holdings of the sort being put up of 57th Street, dubbed “billionaires row,” are assessed so little in tax. Perhaps we also know one of the reasons why lawyers who specialize in liability suits have so much influence. Sheldon Silver, the Speaker of the New York State Assembly, and one of the three most powerful people in Albany for the past 20 years, has been indicted, and accused of being corruptly implicated with both. According to the indictment, handed down this past week by a federal prosecutor, Silver received payments from both a law firm specializing in malpractice, and one specializing in real estate, in exchange for using his enormous influence on their behalf, and on behalf of their clients.
While there is no doubt about the illegality of what the now Former Speaker Silver is charged with doing, there is nothing in the accusations that describes anything all that out-of-the-ordinary. It is a fact universally acknowledged that a successful politician has to convince people to give him money, loads and loads of money, in order to run any kind of credible campaign. That somehow these donations and where they come from have only minimal influence on what elected officials do strains credulity. I am not suggesting that what Mr. Silver is alleged to have done — commandeering state funds for certain people as a sort of recompense for the salary he received from them — is not qualitatively and legally different from accepting campaign cash from people, in whose interest you happen to devote yourself in office. But these two scenarios, the one illegal and the other legal, are similar enough to give us pause.
Zephyr Teachout, the anti-corruption campaigner who challenged Andrew Cuomo in the Democratic primary for governor last year, penned an impassioned op-ed in Monday’s New York Times (January 26) about this very question, remarking also on the very blurred lines between the legal and illegal manifestations of politicians’ accepting cash handouts. But it would be a mistake for those of us who accept Teachout’s diagnosis to jump on the bandwagon of the Anti-Citizens-United Anti-Conservative-Supreme-Court Crusade, which is blind to the serious questions which campaign finance law presents, and tends to show almost no understanding of the basis on which the relevant court cases, the aforementioned “Citizens United”(2010) and “McCutcheon v. FEC” (2014) were decided.
It is commonly aired about, in liberal circles, that campaign finance reform is dead, and that the two Supreme Court Cases mentioned above have destroyed it. Actually, this is not even close to being true. To begin with, Citizens United had nothing at all to do with cash payments made to politicians as campaign contributions, but is concerned only with the right of so-called outside groups, such as Super PACs, to broadcast material that directly references a campaign and directly advocates voting for a particular candidate. Yet the line that used to be drawn between directly referencing a candidate and referencing only their policies is largely meaningless. Is it really all that significant that a particular candidate is named or un-named if the persuasive power of the advertisement and its influence over the political views of voters remain unchanged? If we can allow the one, is it really fair to disallow the other? This was the question facing the Supreme Court in Citizens United; and it is not at all hard to see how a well-meaning legal expert could conclude, as the court did, that the difference is not significant enough to allow Congress to limit the right of the people to use media in order to fund the publication of whatever they wish.
Teachout seems to describe the legal effect of the 2014 McCutcheon decision as saying that “corruption is illegal when there is a specific quid pro quo, and legal were there is not.” But, not only is that not an accurate assessment of campaign finance law and the McCain-Feingold Law (2002), which by the way is still very much on the books, it is not at all what the McCutcheon case was about. In fact, the effect of the McCutcheon decision was only to strike down federal limits on total campaign contributions to any number of candidates. But, the Court also affirmed the constitutionality of limiting a person’s contributions to individual candidates or party committees as a legitimate means of preventing “corruption or the appearance of corruption,” even as it acknowledged that most campaign donations do not result in quid pro quo corruption of any kind (supremecourt.gov). As to the rather limited question before the Court, its decision was not an unreasonable one, especially in light of the vital importance of protecting free speech in our county.
But, you might object that political cash-giving and corporate Super-PAC funding hardly constitute free speech. And you would be right, for strictly they don’t. But they do constitute the expression and dissemination of speech, without which free speech is almost meaningless. I did not myself grasp this until I ruminated on the political history behind the founding of the American Republic and the drafting of the Bill of Rights. Free speech would almost assuredly have been related, in the minds of the Founding Fathers, with the need for state power to be balanced and controlled by the power of individuals critical of the government to make their voices heard. One of the famous abuses of the reign of King George III was that the Crown would routinely use its funds to essentially buy control of Parliament at every general election. If private citizens were prevented from raising their own funds to disseminate their ideas and acquire influence, the government’s power could go unchecked. Of course, in this day and age, no elected official could get away with bribery on such a scale, and no President could conceivably get away with using the funds of the state to buy control of Congress. But, the power of the incumbency, founded mostly on the media coverage which elected officials naturally receive, is still immense. If no private money can be spent advocating the election of opposition candidates through various media, then there is a risk that those already in power will monopolize the channels of communication.
In fact, the origins of free speech laws, predating our Bill of Rights, are explicitly political. They are found in the 1689 law known informally as the English Bill of Rights, which transferred the crown of England to the Protestants William and Mary, and formally deposed the Roman Catholic James II. This law speaks only of the freedom of members of Parliament to say what they like without fear of suppression by the crown. Of course, it must not have taken long for many to realize that the principle of free speech could hardly be confined only to Parliament, and not to the people they represent, and so it was that the idea probably reached our Founding Fathers. Defending freedom of speech has always been about providing a check on state power. If we were to heed Zephyr Teachout’s call to “ban corporate spending and limit total campaign spending,” we would unfairly limit the power of citizens to spend on a corporate level commensurate with the corporate level at which the state and the media, which is often a mouthpiece for the state, operate.
But there is still a great deal of legal space in which to institute campaign finance reform. Instead of lamenting that campaign finance laws have been forever eviscerated by the Supreme Court, when they have not, why not lower the current $2,600 per election/primary per person donation limit to something in the hundreds, and the outrageously lenient $32,000 per person donation limit to party committees to something in the single-digit thousands? No legal scholar could reasonably claim such measures are an affront to free speech while so-called “outside groups” are allowed to spend as much as they like, but they would greatly reduce the power of money in politics, and the possibility of corruption.
Instead of complaining about the power of the Koch brothers, why don’t liberals work at establishing more of a talk radio presence of their own to counter Rush Limbaugh, who, in my opinion, is much more influential than the Kochs, and attempt to re-make liberal media outlets to reflect the undeniable entertainment value that Fox News provides? The reason why conservative media personalities are so much more influential than their conservative peers has very little to do with money. It is simply that the people at Fox News are much clearer, and more forceful, in expressing their opinions.
This also applies to politicians themselves: Republicans have long ceased to have any compunction about calling Democrats unpatriotic, or vowing to stop at nothing to defeat the Democrats politically. Meanwhile, Democrats say a lot of meaningless things about working together. Whose statements do you think enter more into the popular zeitgeist? And what do you think is more entertaining: Fox News’s nonstop political chatter, or MSNBC’s prison documentaries on the weekends?
In a free society, private billionaires will likely always have enormous political influence if they choose to use it, and liberals have to recognize that. This is, to an extent, the way things have to be in a free county. But, have no illusions. Any society that allows state power to go unchecked has a potential to be far, far worse than what we have now.
