Can the Internet Counter the Coming Gusher of Money in Politics?
BY Micah L. Sifry | Thursday, January 21 2010
It's interesting to see how the Internet factors into the Supreme Court's earthshaking decision in the Citizens United case to overturn a century's worth of jurisprudence restricting corporate and union money in politics. I'm going to skip over all the details of the case, and the equally troubling question of judicial activism, as these are really topics beyond the purview of techPresident and are already being hotly debated elsewhere. But to understand how the majority and minority justices in this landmark case discuss the role of the internet in our political ecosystem, you need to understand this much of the larger frame.
To Justice Anthony Kennedy, writing for the majority, the First Amendment rights of corporations shall not be infringed, and therefore current campaign finance law restricting independent expenditures on political advertising occurring within 30 days before an election to being paid solely with "hard" political action committee money, is a violation of their free speech rights. To the degree that he recognizes any reason for limits on money in politics, it is on direct donations to candidates, which he admits could be corrupting, and that the state's interest in preventing corruption or the appearance of corruption can justify such limits. Not so for independent expenditures. He then notes:
Shareholder objections raised through the procedures of corporate democracy, ...can be more effective today because modern technology makes disclosures rapid and informative. A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today. It must be noted, furthermore, that many of Congress’ findings in passing BCRA were premised on a system without adequate disclosure. See McConnell, 540 U. S., at 128 (“[T]he public may not have been fully in- formed about the sponsorship of so-called issue ads”); id., at 196–197 (quoting McConnell I, 251 F. Supp. 2d, at 237). 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.” 540 U. S., at 259 (opinion of SCALIA, J.); see MCFL, supra, at 261. 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.
I think Justice John Paul Stevens' simple dissent on this point says what needs to be said about this notion:
Modern technology may help make it easier to track corporate activity, including electoral advocacy, but it is utopian to believe that it solves the problem.
The truth is, we don't have prompt disclosure of money in politics. Campaign donations are reported weeks, even months, after the fact. The Senate still files its campaign finance reports on paper (!), forcing the FEC to re-keypunch their data and delaying vital disclosure of who is funding their campaigns by more months. Lobbyists only report quarterly, and only say which chamber they lobbied, not which Members or on what legislative topics. Even if we did have real-time online disclosure of money in politics, it's far from clear that the free (as in cheap) speech enabled by the internet plus the watchdogging efforts of networked citizens can genuinely counterbalance the power of concentrated money in distorting democracy. If that were already so, nobody would run political ads on TV, would they?
Likewise the ameliorating effects of small donors in politics. It's certainly a welcome development, and now that people are beginning to get comfortable making donations via SMS, small money in politics may grow even faster (assuming the telcos loosen their greedy hold on money donated via texting). But can small donors really compete with Exxon-Mobil's corporate treasury, which grew by $45 billion in profits in 2008 alone? (That's billion with a b.) Over on the ActBlue blog, Matt deBergalis notes that the Democratic site has aggregated $118 million in small donations since its founding in 2004. That's a terrific achievement that small-d democrats of all political stripes can and do respect. But it's nowhere close to what the Court has now licensed, in terms of direct spending from corporate and union treasuries.
As Stevens concludes: "...the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense." Indeed.