1. First Bite
Hillary Clinton’s first official campaign trip produced a widely quoted soundbite. On April 14, she announced to a community college roundtable in Monticello, Iowa: “We need to fix our dysfunctional political system and get unaccountable money out of it once and for all – even if it takes a constitutional amendment.”
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The Washington Post identified this statement as “one of several pillars of her 2016 presidential campaign.” CBS’ headline for its story on “unaccountable money” featured Clinton’s positioning it as one of the “four big fights that I think we have to take on,” the others being the evergreen apple-pie subjects of the economy, family and national security. Her communications director, elaborating on Clinton’s spare comments, enthused “It’s something she’s really concerned about.”
Under Clinton’s proposal, the embarrassing flood of money into US politics, anticipated to explode even further in her own campaign, will not be stanched.
Considering the months spent crafting her campaign’s four policy pillars, and also the way the message was tightly controlled in Iowa, Clinton’s particular phrasing for her “unaccountable money” pillar may safely be assumed to have been delivered precisely as intended by her campaign team.
The Post’s headline writers, NPR and others nevertheless quicklyconverted Clinton’s hypothetical statement, “if it takes a constitutional amendment,” into a far more committed “support for a constitutional amendment,” as if Clinton is expected to propose or endorse a constitutional amendment during her campaign.
Clinton considerately wants Americans to know who is buying the power to operate their erstwhile democracy against their every interest.
George Will hyperventilated on Fox that, “One of her four fundamental goals is to change the First Amendment to empower the political class to write legislation restricting the quantity, content and timing of political speech about the political class. I don’t think anyone has ever announced running for president that they wanted to change the Bill of Rights.” Calm down George, she said nothing of the kind.
Slate’s dog-whistle headline, relying on nothing more than the above quote in the Post, also transformed her statement, even further than the Post: “Hillary Clinton Hints at Support for Constitutional Amendment to Overturn Citizens United.” The Post, and Clinton in Iowa, said nothing at all about Citizens United, let alone support for any “amendment to overturn” it. What Clinton did say is closer to the opposite of either of those two concepts, or Will’s.
2. Accountable Disclosure
Contrary to the commentariat, Clinton’s statement does not supportgetting all or any part of interested money out of politics, which is what people advocating an “Amendment to Overturn Citizens United” think they are supporting. Clinton is speaking solely about “unaccountable money.” Political investments can become “accountable” without being excluded from the pay-to-play system of US politics. Clinton is simply advocating that money be disclosed.
“Unaccountable” is a term of art as used by Clinton because “dark money” plutocrats are accountable to no one in a system that they own, whether their money is disclosed or not.
Under Clinton’s proposal, the embarrassing flood of money into US politics, anticipated to explode even further in her own campaign, will not be stanched. Money would be accounted for by disclosing its provenance, which is now often left undisclosed by use of 527s and other IRS conduits of political money. Clinton considerately wants Americans to know who is buying the power to operate their erstwhile democracy against their every interest. There is no assurance whatsoever that such disclosure would have any significant impact on the pervasive corruption of US politics that has been achieved under George Will’s, but not the framers’, bizarre version of “freedom of speech” that has facilitated the overthrow of democracy by plutocrats.
Under systemic corruption, more disclosure can have the unintended consequence of helping to circumvent one of the few remaining inconveniences to plutocrats. Plutocrats who feel their “freedom of speech” constrained by the new 2014 $5 million contribution limits per person per election cycle, jointly endorsed by Congress and the Supreme Court, can spend as much as they want on “independent” electioneering. The only condition, so the cover story goes, is that they must not “coordinate” their expenditures with the campaigns.
But to buy influence, the candidate needs to know who is paying them off. By bridging this inconvenient gap, one of the few in the American system of political corruption, a requirement for formal transparent disclosure is a perfect solution for fully legalized coordination. Accordingly, disclosure is the reform that Democrats and their allies are selling to their supporters, and the reform the plutocrat justices of the Roberts Court also tolerate, even promote, with no fear of significantly upsetting the corrupt political system it is their assignment to maintain.
Since the outset of the current era of systemic corruption of politics, the Supreme Court responsible for making that corruption systemic has nevertheless, without reservation, reaffirmed disclosure
In the system where the Supreme Court legalizes corruption and the mass media collects a toll to mediate their messages, only proxies of plutocrats are on offer to voters. Clinton’s notion that actual “accountability” is even possible in such a system, other than in the limited sense of mere disclosure, would be highly dubious. When all competitors are on the take from the less than 1% – now closer to 600 plutocrats – disclosure alone fails to create any effective differentiation that could make politicians accountable to voters. But Clinton was not talking about accountability of politicians to voters. She was talking about the unaccountability of money when its origins are unknown. “Unaccountable” is a term of art as used by Clinton because “dark money” plutocrats are accountable to no one in a system that they own, whether their money is disclosed or not.
3. Constitutionality of the Closure Gambit
As a lawyer, Clinton must already understand that no constitutional amendment is required to accommodate a legislative remedy for her “unaccountable money” pillar. Laws under the existing Constitution can require all the additional disclosure that she could possibly want. Disclosure requirements for campaign contributions have existed in federal law since the Progressive Era’s “Publicity of Political Contributions Act of 1910,” 36 Stat. 822. The constitutionality of such disclosure laws has never been doubted.
In Ex Parte Curtis (1882) (8-1) the Supreme Court ruled, without even bothering to argue the point, that the power of Congress to outlaw political corruption outweighs any asserted First Amendment interest in making political donations. The First Amendment argument made by the petitioner in Curtis, and successfully dismissed by the government’s brief as unworthy of even being given serious attention, albeit accepted by a lone dissenter, was insufficient to legalize money in politics against a total ban.
Congress is too mired in systemic corruption, and the FEC too deadlocked, to enact even tepid and marginal reforms necessary to make disclosure more robust.
Since a total ban was approved under the Curtis ruling, no disclosure requirement could have raised a conceivable objection for political investments which could have been constitutionally banned, at least not any time before the Nixon court rejected the reasoning of Curtis nearly a century later, without even mentioning it.
The Supreme Court held disclosure laws to be constitutional in Burroughs v. United States (1934) (9-0) when it upheld the strengthened disclosure requirements of the 1925 Federal Corrupt Practices Act. As that Court explained, disclosure requirements are “calculated to discourage the making and use of contributions for purposes of corruption.” This most conservative of any Supreme Court majority prior to the current Roberts 5 resoundingly rejected the very idea that disclosure requirements might be constitutionally invalid, calling the very “proposition so startling as to arrest attention.”Quoting from another deeply conservative Gilded Age Supreme Court lineup in Ex parte Yarbrough, 110 US 651 (1884), the 1934 Court explained that”government … must have the power to protect the elections on which its existence depends from violence and corruption … the two great natural and historical enemies of all republics.”
Later in United States v. Harriss, 347 US 612,625 (1954) the Supreme Court again expressly approved mandatory disclosure of political investments connected with some actual speech in the context of lobbying. Chief Justice Warren held in Harriss that:
…the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent… Congress… is not constitutionally forbidden to require the disclosure of lobbying activities. To do so would be to deny Congress in large measure the power of self-protection.
Democratic support for the “CRomnibus” Act betrayed the notion that Democrats’ professed commitment to “campaign finance reform” meant that they would seek laws mandating less, not considerably more, money in politics.
See also National Association of Manufacturers v. Taylor (D.C. Cir. 2009) (upholding lobbying disclosure under Honest Leadership and Open Government Act of 2007).
Since the outset of the current era of systemic corruption of politics, the Supreme Court responsible for making that corruption systemic has nevertheless, without reservation, reaffirmed these same principles. Disclosure was endorsed by Buckley v. Valeo (1976), the judicial mother lode for legalizing the corruption of the current Gilded Age, and again by Citizens United (2010), the bête noire of all professional activists working the campaign finance silo. When the Roberts Court overturned aggregate limits for political investors in McCutcheon (2014), making corruption about 30 times worse, Justice Roberts lauded this “less restrictive alternative” which he contends, “given the Internet, … offers much more robust protections against corruption” than ever.
This never-questioned constitutionality of disclosure laws has been of little or no demonstrable utility in preventing the current systemic levels of political corruption. It is nevertheless regularly trotted out by politicians and other operatives of the corrupt system in the manner of C.J. Robertsas their cure-all shibboleth.Clinton has built her “unaccountable money” pillar on this well-worn tradition of calling for greater disclosure, and nothing more. Current disclosure laws are certainly inadequate. But this is because Congress is too mired in systemic corruption, and the FEC too deadlocked, to enact even tepid and marginal reforms necessary to make disclosure more robust. The emphasis of professional activists on the Constitution has succeeded in diverting attention from the failure of Democrats to exercise these and other far more effective powers that the constitution already provides them.
4. The Amendment Diversion
The Supreme Court’s historic, consistent, and virtually unanimous, rulings make clear that there is no need for a constitutional amendment to require full disclosure of currently “unaccountable” or “dark” money. She must have spent some tiny fraction of what has been projected to be an over $2 billion campaign to do some elementary initial research and strategy development about the only one of her expensive campaign’s four basic policy pillars that is not anodyne. The context of offering these four pillars was to explain her reasons for running. Her issues team must have gone over every word of her sentence on this pillar and advised her to connect mention of an amendment with her “unaccountable money” pillar by use of the hypothetical “if,” because they know that an amendment is not, in fact, necessary to accomplish the limited Clinton disclosure agenda. The legal and strategy memos on that one word “if” would probably have cost an easy grand of consultant’s time.
“Simple disclosure fails to prevent shady dealing…. So the State remains afflicted with corruption.”
Hypothetical mention of an amendment does help obfuscate the extremely limited nature of her agenda. Mentioning the Constitution makes her proposal sound important. Amendment advocacy, however hypothetical in the case of the “unaccountable money” pillar, helps distract constituents’ political energies to futile pursuits, while also deflecting responsibility to others. This is the strategy that has worked for Democrats on the corruption issue.
The Democrats’ professional activist allies’ rush to enlist Clinton into their amendment cause suggests that they either do not know, or do not care, that no amendment is necessary to achieve the mostly useless, if standing alone, “accountability” of money in politics that Clinton supports. Clinging to their futile amendment approach, such activists mistakenly insist there is “no question that an amendment will be needed.” They do not know or care that it would be a counter-productive waste of time to confirm, by constitutional amendment, the validity of general powers of Congress which have never been seriously questioned on constitutional grounds and were only recently exalted by the great defender of plutocracy himself, Chief Justice Roberts.
Guilty contractors should be disqualified – not just disclosed.
Presumably at the behest of such uninformed activism, Bernie Sanders has proposed an amendment that would authorize “requirements to ensure the disclosure of contributions and expenditures made to influence the outcome of a public election.” This provision risks not just wasteful, but also counterproductive results.
Given the uninformed quality of the constitutional amendments that have been proposed on this subject by Democrats and their professional activist allies, one can easily imagine that an amendment for this purpose, although unnecessary, could well result in more harm than good. The close parsing by a hostile Roberts Court of any particular new constitutional text on this subject could be turned on its head to reduce Congress’ current unrestricted authority to mandate all the disclosure of money in politics they may desire.
Clinton’s mention of an amendment should be no surprise. The constitutional amendment idea has been used as a theatrical prop to give cover to Democrats mired in the corrupt system as deeply as Republicans. Republicans like Will embrace plutocracy as some surreal 21st century manifestation of the founders concept of “freedom of speech,” a concept formed long before there was a mass broadcast media that could be hired for political propaganda fabricated by a marketing industry. Accepting the Republican’s game, rather than rejecting its absurdity, Democrats misleadingly propagate the idea that a constitutional amendment is the sole means by which they could limit money in politics.
Disclosure would need to be accompanied by a more comprehensive legislative package to accomplish any actual “reform.”
The stalemate resulting from this amendment diversion absolves the Democrats’ four-decades of failure to advance far more effective and available legislative measures. Under cover of such deceit about their support for a futile amendment, a majority of Senate Democrats in the 113th Congress were empowered to vote for plutocracy in December 2014. A majority of Democrats voted to increase, by an order of magnitude, the money that plutocrats can give to buy political parties. Democratic support for the “CRomnibus” Act betrayed the notion that Democrats’ professed commitment to “campaign finance reform” meant that they would seek laws mandating less, not considerably more, money in politics. But their historic betrayal met with little, if any, protest from their professional activist allies. The political non-profits kept their eyes safely diverted to the futile amendment approach, although an amendment – even if adopted – would not even have stopped Congress from enacting an increase of money in politics, as they did in 2014.
Amendment advocacy has served to divert attention from the Democrats’ failure to change the way Washington does business during the past five years of heightened political demand for change, or even so much as to advance a strategy that could do so. The eventual, and inevitable, collapse, on September 11, 2014, of the Democrats anti-“Citizens United” constitutional amendment theatrics caused those professional activists who got the memo to pivot to a new advertising slogan for 2015. Their new advertising campaign promotes the disclosure of “Dark Money,” while attempting to make that slogan sound even worse than their “Citizens United” soundbite. This latest piecemeal reform fad by non-profit fundraisers ignores Justice Elena Kagan’s koanic axiom: “Simple disclosure fails to prevent shady dealing…. So the State remains afflicted with corruption.” But it serves Clinton’s straddle between disclosure and amendment.
5. Clinton’s Dark Money Hypothetical
The recent solicitations from political non-profits have reduced expectations so far as to ask that you send them money to help eliminate “dark money” electioneering only by government contractors. This is a reform Obama could accomplish on his own, as a matter of presidential responsibility to “take Care that the Laws be faithfully executed,” and should have done so when the subject first arose in 2011. The activists scrambled on board after the New York Times editorially approved this approach. This reform would, they say, “unmask major corporate political donors with a simple executive order.”
Of all the plutocrats and their corporate agents who make political investments, some anonymously, this reform would reach only the subset of government contractors. Instead of demanding mere disclosure of political investments from government contractors, activists should at the very least demand policies for this subset that would totally abolish political kickbacks from the procurement system. Their demand should be for strengthening by regulation and robust enforcement the prohibition against contractors who “directly or indirectly … make any contribution …to any person for any political purpose or use” in violation of — 2 US Code § 441c (“Contributions by government contractors”). Demanding mere disclosure in this context, as it usually does, serves to divert attention from more meaningful reform. Guilty contractors should be disqualified – not just disclosed.
Even such no-brainer anti-corruption best-practice disclosure, let alone disqualification, of firms guilty of conflict of interest electioneering expenditures has been too much for a Democratic President. Obama uses highly contingent and distancing language whenever he mentions money in politics, such as his statement (emphasis added) about: the “need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United(assuming the Supreme Court doesn’t revisit it). Even if the amendment process falls short, it can shine a spotlight on the super-PAC phenomenon and help apply pressure for change.”
The multiple italicized contingencies Obama employed indicate that he understood an amendment to be little more than political theatrics. By mentioning Citizens United, not Buckley v. Valeo, and Super-PACs instead of the whole corrupt system of bribery intermediation, he slices and dices the problem into its piecemeal soundbites. As a former constitutional law lecturer and record-setting fundraiser, Obama must know that the independent corporate electioneering legalized by Citizens United had very little to do with Super-Pacs, which are overwhelmingly funded by a handful of rich individuals and their non-profit proxies, with very little (only 12%) coming from for-profit corporations. Moreover Super-Pacs already have adequate “spotlights” on them from a largely outraged public. If the “amendment process” is expected by Obama to “fall short,” then exactly what is the “change” that President Obama believes can be obtained by “pressure” that might arise from such failure?
Failure due to misdirection usually depletes energy, causes frustration, and alienates voters, which only relieves the “pressure” on corrupt politicians. But Obama presumably knows that. His latest tepid statement, sounding like the halting thoughts of a bystander to the process of policy making, was that he would “love to see some constitutional process that would allow us to actually regulate campaign spending the way we used to, and maybe even improve it.” This could mean almost anything while committing Obama to nothing. One suspects that Obama’s “love” will not give birth to any effective strategy; nor will Clinton.
By mentioning a constitutional amendment in connection with her disclosure pillar without endorsing anything specific, Clinton is doing little more than what Obama and his party have already done. Clinton adopted similar language to the commitment made by the 2012 Democratic Party platform: “We support campaign finance reform, by constitutional amendment if necessary.” The rubric of “campaign finance reform” could include disclosure of “unaccountable money” as one tactic. But disclosure on its own is not reform. It would need to be accompanied by a more comprehensive legislative package to accomplish any actual “reform.” Clinton, by narrowing “campaign finance reform” down to her “unaccountable money” pillar, is cleverly promising considerably less than the party whose government she served had promised in the previous election.
By mentioning a constitutional amendment in this context, although the inadequacy of disclosure laws has nothing to do with the text of the Constitution, Clinton not only blows the dog-whistle for those who have been diverted to the futile amendment approach by professional activists for the past five years, but also prepares a convenient exit for herself from even this truncated “dark money” issue. As one commenter observed, she can “endorse the concept without too many expectations about personally making an amendment happen.” A president has no formal role in adopting an amendment so it serves to shift responsibility for the issue away from her, as it has done for Obama.
On the other hand, it is not beyond possibility that Clinton in office might actually pursue an unnecessary amendment to win a symbolic victory that would actually be counterproductive. Kennedy did this with the 24th Amendment over the objection of the NAACP, and it could be done again for similar reasons. If only for that reason, Clinton should be pressed to disclose her legislative plan. Clinton should explain her use of the hypothetical “if,” since, in fact, no amendment is necessary, whether to force disclosures of money in politics, or to enact far more robust prohibitions than any amount of disclosure could possibly accomplish.
It is those other, strategic legislative solutions for banning money from politics, such as strengthened conflict of interest recusal or exclusion rules, and Exceptions Clause or Eleventh Amendment jurisdiction-stripping, that Clinton, along with the Democratic Party, can be safely expected to avoid at all costs.
Democrats using effective strategy to get money out of politics would be even more surprising than the message of a “showman patriot“‘s landing of a gyrocopter on the White House lawn getting the sustained attention of the complicit mass media to the issue of money in politics. The Wall Street masters would not consent to any effective strategy to restrain their plutocracy. According to the New York Post: “One reporter asked Clinton to reconcile her vow to purge ‘unaccountable money’ from campaigns with the super PAC now raising hundreds of millions for her. She shrugged and said, “I don’t know.””