Lessig v. Shapiro, Klein Presiding

Mr. Wonk

Ezra Klein has been filling in on the Rachel Maddow Show this week, which is a good choice since he’s one of the few people on television who can out-wonk the wonk. On the show Tuesday night, he lived up to his wonk credentials by tackling LIBOR in under three minutes. But his service to our cause came in the form of moderating a mild debate between Harvard Law’s Professor Lawrence Lessig and Cato Institute Senior Fellow, Ilya Shapiro.

Ezra starts with an overview of the dominance of large donors in campaign finance, adorned with pie charts — mmm, pie charts — and moves through a brief mention of the hearing in the Senate Subcommittee on the Constitution, Civil Rights and Human Rights, at which both guests testified on Tuesday. Now I like Ezra and his wonky ways but by the time he got to his guests, there was little time left to explore the myriad of issues his wide-ranging questions touched on. Television is a tough business and the Maddow Show has an excellent crew. Sometimes it’s hard to predict how deep the well goes on a given topic. Below the video, we’ll explore some of the threads left dangling by the limitations of the tube.

Let’s Start with the first quarry, the super PAC. Professor Lessig almost makes the right point but not quite when he says:

Citizens United started a cascade of decisions in the lower courts, and then in the FEC, to change the basic structure of what’s now called the super PAC. The super PAC has become this super weapon for gathering large contributions and deploying them in political context.”

He’s correct, of course, but it didn’t help deflect the point made by Ilya Shapiro a couple minutes earlier:

“All Citizens United did was let corporations, unions, any group of people spend money on independent political speech, not donate to parties or candidates or campaigns but independently speak politically. And you know who is taking advantage of that? Unions, advocacy groups, not big corporations. Corporations are staying out because they don’t want to piss off half of their consumers.”

There are two points missing from this exchange. First, super PACs are themselves corporations, which is why they took over for the 527s and 501(c)s. Super PACs enjoy nearly all the benefits of the civil rights that come with citizenship without the restrictions imposed by those other legal entities. And compliance with the very few restrictions super PACs are supposed to honor is easily faked or studiously ignored. But second, and more importantly, corporations are run by senior executives who take home exorbitant salaries. It takes minimal accounting magic to reimburse an employee for political contributions, and bonus seasons falls immediately after election season. Corporations don’t have to directly contribute to anything to finance an entire election. It’s like everyone has forgotten how the books are cooked all the time. Hey, everyone. The books are cooked. All the time.

And then there’s the exchange between Ezra and Ilya Shapiro on the subject of Buckley vs. Valeo:

Shapiro: “The problem is you have this ungainly system where because of a 1976 Supreme Court case, not Citizens United, it’s called Buckley vs. Valeo, Congress is allowed to cap contributions to candidates but not candidate spending. And so it’s an unbalanced system and that’s what forces campaigns to fundraise all the time and that’s why we have this free speech on the independent side but candidates and campaigns are hampered and so there’s this instability in the system that creates all sort of perverse incentives.”

Klein: “I think that’s a huge point, right, because we talk all the time about Citizens United. We don’t tend to talk that much about Buckley v. Valeo. But that really was, I think, the fundamental architecture of what we can and can’t do in campaign finance reform.”

And then Ezra veers away into disclosure rules. He had the whole nugget sitting right there and instead he moved on to how ineffectual disclosure rules really are. For everyone in the audience hearing the words “Buckley v. Valeo” strung together for the first time, they have no idea what either of them are talking about. What Ilya said certainly sounds plausible enough and the basic facts are correct. However, the truly big deal about the Buckley decision was left unstated: because all listeners have a constitutional right to hear all possible speakers, spending money for political purposes is the equivalent of protected speech. That’s the core logic of the case, which is patently illogical, of course, but that’s the law of the land. It was left out of the discussion completely.

Ilya, who deserves a lot of credit for even mentioning Buckley at all (might have been the first time I heard it mentioned on any channel anywhere – big props, Ilya!), believes the big deal is the lack of some abstract “balance” between regulating contributions and regulating expenditures, though he fails to explain precisely how this imbalance itself is a bigger factor in creating “perverse incentives” than the total lack of limits on contributions has already proven to be. Put it this way, is it the ability to balance your budget that is an incentive to go for bigger donations or is it the size of the bigger donations? The answer should be obvious.

And here’s where the limitations of the clock and the booking process really hurts understanding of a topic in TV-land:

Lessig: “So this is the economics of a protection racket, right, and the point is, all of the effect is happening long before anybody spends one dollar, and perfect disclosure… could never begin to capture that effect because, of course, you could never disclose a threat.”

Klein (to Shapiro): “Do you worry about that?”

Shapiro: “I’m not concerned about that, I’m not concerned about super PACs. I mean, they sound scary. But it’s really people getting together to pool their money. [...] [U]nless politicians really want to say… ‘we want to protect our seats so much that we’re going to stop independent individuals together or independent billionaires from spending their money on political speech,’ if that’s what they want to do, I mean, that’s scary to me in terms of protecting the first amendment.”

First of all, the only hint of a suggestion that individuals (rich or not) be completely prohibited from spending on campaigns is coming from those who advocate full public financing of all federal elections, which consistently polls fairly well (PDF) but has virtually nothing to do with addressing Citizens United. It’s a tough sell even as legislation. It’s never making it into an amendment that can be taken seriously. What we’re talking about is limits, not prohibitions, and Ilya knows that. It saddens me that an otherwise intelligent person would resort to such obvious lies to advance his agenda. But Ilya doesn’t realize his mistake — the idea that all speech is free except some speech is more free is Animal Farm. “Free” speech is anything but in a world dominated by multinational media conglomerates. And if NBC is a person, than its wealth and access to the airwaves means it has MORE free speech than the rest of us. Ilya is fearful of any limits at all but he fails to explain how a free-for-all would be an equalizing force in electoral politics. There may be a level playing field between NBC and CBS, CNN and Fox News, but there’s no level playing field between those powerful corporations and the people, even the people who are collected in unions, which are a shadow of their once glorious selves.

And this brings us back to Buckley. If the point of Buckley is to create an environment wherein more people have access to more speakers on any given political issue, then the remedy is to lower the cost of entry to the marketplace of ideas and remove as many barriers to an equality of representation in the national debate as possible. Eliminating all caps forces the people to first compete and win in the marketplace of commerce to even have a chance to obtain a starter booth in the marketplace of ideas. That means free speech isn’t free and the logic underpinning Buckley — and Ilya’s testimony — collapses in on itself. The truly egalitarian remedy would be to eliminate the cost of elections altogether so the price of entry to the marketplace of ideas is truly “free.” That would be a proper remedy under the auspices of Buckley. But the Court never considered that side of the argument for two reasons: 1) totally free elections is an impossible goal and 2) the Court has long been dominated by corporate stooges who will find any excuse, in or out of the Constitution, to advance their bankrupt ideology. (That is a fact that cannot be disputed, even in the face of Roberts’ “conversion” in the ACA ruling, which was about further eroding the commerce clause and little else.)

Democracy is not the market. The way winners and losers are determined in the marketplace should have nothing to do with how winners and losers are determined in the political arena. That’s why the Cato Institute is useless in a debate like this. The only thing Cato understands is it’s circular invisible lobbyist, er, invisible “hand,” logic, that has never, in any universe, made any form of sense whatsoever, and is based on a lie, to boot. But the propaganda they pump out daily serves to muddy the waters just enough to provide cover for the kleptocracy that finances their propaganda. It’s a neat little system they have.

Ilya should be ashamed of himself for even trying to advance these preposterous notions. And anyone who truly values democracy should have nothing to do with Cato or outfits like them. They are front operations for institutional corruption and nothing else. This isn’t a liberal versus conservative thing, either. Cato demonizes everyone below a certain net worth. True conservatives value individual rights over collective rights in nearly all circumstances. What few exceptions may exist must be carefully vetted and purified of all possible hints of “socialism.” That Cato thinks it can ignore this fundamental ideological tenet and still call itself “conservative” is laugh-out-loud funny. Cato is not conservative. It’s a propaganda machine for dictators, real or aspiring. It serves no other purpose under the Sun. They have nothing of substance to offer on any subject, let alone subjects as important to civic participation as political speech and campaign finance. Unfortunately, they can’t be ignored because corporatist politicians and pundits will continue to advance their inane propaganda like wave after wave of balsa wood bombers. So we’ll just have to keep shooting them down here. Put on your flak jacket, it’s gonna be a long fight.

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