Denver Bar Association
September 2012
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Limiting Money in Politics: Voter Equality Threatened by Campaign Cashgoo

by Ken Gordon, Ken Gordon

Editor’s note: This column and "In Praise of Citizens United: Someone Has to Pay for All Those Yard Signs" offer a point-counterpoint on the merits of limiting money in politics.

F


rom a macro level, the money-inpolitics issue pits five members of the U.S. Supreme Court who make an absolutist freedom argument against the desire of the American people to maintain rough equality in each person’s political voice—freedom vs. equality. When people try to limit money in politics they try to preserve the political equality that is part of our American historical DNA:

• In the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal.”

• In the Gettysburg Address, “Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.”

• In the Fourteenth Amendment, “nor shall any state … deny to any person within its jurisdiction the equal protection of the laws.”

Clearly, all men (and women) are not created equal in intelligence, physical characteristics, or many other ways. What the writers of the above statements meant is that we are all equal in the respect and consideration that should be shown to us in the process of creating a government. It is what Baker v. Carr, the Tennessee reapportionment case, meant when it said, “one man, one vote.”

I admit that if I tell one of the billionaires who likes to contribute to Super PACs that he can spend only X dollars rather than the multi-millions he wants to spend, then I am interfering with his freedom. The Supreme Court feels this is the end of the discussion.

Proponents of this kind of unlimited freedom seem to ignore the cost to democracy inherent in unlimited spending. Sheldon Adelson may give $100,000,000 to the Romney Super PAC. In a Romney administration, will your voice be equal to his? The same will apply to billionaires on the Democratic side. A recent Brennan poll found that 25 percent of those surveyed were less inclined to vote because of the influence of Super PACs. They felt their vote didn’t matter very much.

We live in a world of vast and growing disparities in wealth. When there is no barrier between the money of wealthy individuals and corporations and the political system, then we have lost the equality that is part of our founding principles. (Unions can make unlimited expenditures as well, and it is fair to mention this, but their resources are small compared to corporations.)

This is not just a theoretical loss. It shows up in every policy we try to put into place. Want to protect coastlines from offshore drilling? Exxon made a $49 billion profit in 2009. Because of Citizens United v. Federal Election Commission, it can spend as much of that as it likes on political campaigns. How courageous do you think Congress is going to be in advocating for policies opposed by the oil industry? We saw in the health care debate that Congress would not oppose the interests of insurance and pharmaceutical companies. We saw in the debate over financial regulation that Wall Street can still gamble with public funds because the Glass-Steagall limit on using depositor money for risky investments was not reinstated.

So there you have it. If you are opposed to any regulation of money in politics, then you are OK with destroying the principle of political equality, and having a government that works disproportionately for wealthy interests.

But there are reasons we don’t have to go there.

First, the Supreme Court has stated that independent expenditures create no danger of corruption, or the appearance of corruption, both of which they agree are grounds to regulate actual contributions. In the majority opinion in Citizens United, Justice Anthony Kennedy said there is very little evidence that independent expenditures even ingratiate. Not to put too fine a point on it, but this position is absurd.

It tends to show why the restrictive “political question” doctrine has merit. None of the members of the Supreme Court has ever run for office. The legislative branch says unlimited independent expenditures by non-human entities such as corporations and unions create a substantive evil. The Supreme Court says, “No, we know better.”

I ran in eight elections myself. What everyone in politics knows is that if an interest group or person spends a large amount of money helping a candidate get elected, that candidate will have normal human gratitude. If a piece of legislation came up that the spender favored or opposed, the official would tend to support that interest because of that gratitude and because—this is important—the official would want the spender’s help the next time he ran. The elected official would know that if he voted against the spender’s interest on something that was important to the spender, the spender won’t support the elected official in the next election.

The conclusion that independent expenditures do not create the danger or appearance of corruption is false and is not a necessary conclusion under the First Amendment. Second , the position that the First Amendment creates an unlimited right to spend any amount of money in politics can be challenged on its face. No right is absolute. You can’t yell “Fire!” in a crowded theater. Very few people would argue that the Second Amendment requires that we allow visitors to a prison or an airport to go through security with a handgun. No one argues that we have to allow sound trucks to go through a residential neighborhood at 2 a.m. blaring out, “Vote for Smith.”

A corporation does not need to make unlimited expenditures from its treasury to be heard. A corporation can hire lobbyists that make a case on the merits. A corporation can create a PAC funded by its employees to make contributions. All of the employees and shareholders of a corporation can contribute individually to a candidate who they feel shares their values and will vote with their interests. There are many times, places, and methods that allow for corporate influence without also allowing corporations to spend directly from their treasuries.

So, when you think about this issue the question that needs to be considered is whether unlimited spending on campaigns by groups seeking to buy influence for their own selfish interest is required by the First Amendment or can the people take actions to preserve the political equality that is necessary for a democracy to function? D

Ken Gordon practiced law in Denver for 17 years before being elected to the Colorado Legislature. In 1987, he won an award from Westword for being the Best Pro Bono Attorney in Denver. In 1992, Gordon was the only candidate in either party elected to the Colorado Legislature who did not take special interest PAC contributions. During his 16 years in office, Gordon served as Senate Judiciary Committee chair, minority leader in the House, and majority leader in the Senate.

 


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