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How I Became Stephen Colbert's Lawyer -- And Joined the Fight to Rescue Our Democracy from Citizens United

The Supreme Court's campaign finance legacy has undermined the "whole purpose of the Constitution," to have a "functioning, representative" government.

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“With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests…The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.  This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

It is hard to think of a more ringing endorsement from the Court of mandated disclosure of the funding of political spending!

The NAACP comparison rests on a similarly flawed foundation: the harm faced by members of a small and highly unpopular civil rights organization in Alabama in the 1950s was severe physical violence—even death. Groups that allege a fear of “reprisals” today are of a different nature entirely, as is the nature of the alleged reprisal.  The NRA and Chamber of Commerce are hardly small and vulnerable unpopular minority groups.  Nor is the organization in California that led the campaign against same sex marriage in that state to a 52 percent popular vote victory.  And the harm alleged is not death or serious physical danger, but insults and consumer boycotts (itself protected first amendment activity).

As Justice Scalia wrote in Doe v. Reed, a case about disclosure of ballot signatures:

“There are laws against threats and intimidation: and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance.  Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.  For my part, I do not look forward to a society which…campaigns anonymously…[t]his does not resemble the Home of the Brave.”

So, where do we go from here, on disclosure or any other campaign finance issue??

We have campaign finance practices that both parties—and presidential candidates—say they dislike.  I would like to think that after this election the problems with the status quo will be overwhelmingly clear to both sides, and a consensus on a new way forward will emerge.  Unfortunately, at the moment only the first part of that sentence seems accurate—the problems are clear, but the ability to reach a consensus is not.

There is talk of a constitutional amendment. Not only would such an amendment be hard to draft, putting the interpretation right back into the hands of the Courts, but I think talk of an amendment encourages avoidance of the hard work that should be done to solve these problems. For there are legislative solutions that would be both effective, and constitutional—they just take legislative willpower. Such a reform agenda could include:

  • Defining independent expenditures so that they are truly independent-of the candidates, their agents, previous staff, close family members, current vendors
  • Requiring disclosure of the sources of funding of all election ads, no matter who runs them
  • Reform of the FEC, so that it becomes an effective, independent, enforcement agency
  • Restrictions on contributions, and fundraising, by lobbyists
  • Lobbying regulation reform, as proposed by the ABA, to ensure that people who lobby or run lobbying campaigns, become registered lobbyists
  • An effective public funding system, so that candidates for President and the Congress have the resources needed to campaign for office, and to run for re-election, without spending every moment of their working day thinking about fundraising rather than doing the work they were elected to do

These are not easy solutions, and I do not claim they are the only ones, or even necessarily the right ones. But the time has come that we—all of us—need to dedicate ourselves to acknowledging the problems with our campaign finance practices—and what they are doing to our governmental system—and resolve to correct them.