The American political system: ruin and reform

The Supreme Court has just made even harder the effort to limit the degradation of American politics by money, says Godfrey Hodgson.
Godfrey Hodgson
11 February 2010

For many years now, many informed observers - journalists, academics, even practitioners with tender consciences - have agreed that American politics is being ruined by money: by the abundance of money from special interests sloshing around Washington, and by the avidity with which all too many politicians pursue it, first to ensure their re-election, then for themselves.

Such different judges as Elizabeth Drew, the liberal columnist, and Jeffrey Birnbaum, an experienced investigative reporter and broadcaster, have powerfully argued this case. Robert G Kaiser, the recently retired number two at the Washington Post, supplies a impeccably researched account of how lobbying works in Washington in his book, So Damn Much Money - whose title quotes a remark from Bob Strauss, the ultimate insider’s insider in Washington, lawyer-lobbyist, politico and former Democratic Party chairman (see So Damn Much Money: The Triumph of Lobbying and the Corrosion of American Government [Random House, 2010]).

Now Lawrence Lessig, a professor the Harvard Law School and former colleague of President Obama at the University of Chicago, has written a long and agonised article blaming the president’s frustration on the corruption of American politics by money, and suggesting two devices that might clean up the stables (see “How to Get Our Democracy Back”, Agence Global, 5 February 2010). Lessig’s article is worth reading in full, though some brief extracts give a flavour:

“(A) year into the presidency of Barack Obama, it is already clear that this administration is an opportunity missed. Not because it is too conservative. Not because it is too liberal. But because it is too conventional. Obama has given up the rhetoric of his early campaign - a campaign that promised to ‘challenge the broken system in Washington’ and to ‘fundamentally change the way Washington works.’ Indeed, ‘fundamental change’ is no longer even a hint.”

“At the center of our government lies a bankrupt institution: Congress. Not financially bankrupt, at least not yet, but politically bankrupt.”

“As fundraising becomes the focus of Congress - as the parties force members to raise money for other members, as they reward the best fundraisers with lucrative committee assignments and leadership positions - the focus of Congressional ‘work’ shifts. Like addicts constantly on the lookout for their next fix, members grow impatient with anything that doesn't promise the kick of a campaign contribution. The first job is meeting the fundraising target. Everything else seems cheap...This dance has in turn changed the character of Washington.”

“This democracy no longer works. Its central player has been captured. Corrupted. Controlled by an economy of influence disconnected from the democracy. Congress has developed a dependency foreign to the framers' design. Corporate campaign spending, now liberated by the Supreme Court, will only make that dependency worse. ‘A dependence’ not, as the Federalist Papers celebrated it, ‘on the People’ but a dependency upon interests that have conspired to produce a world in which policy gets sold...No one, Republican or Democratic, who doesn't currently depend upon this system should accept it.”

“What would the reform the Congress needs be? At its core, a change that restores institutional integrity. A change that rekindles a reason for America to believe in the central institution of its democracy by removing the dependency that now defines the Fundraising Congress. Two changes would make that removal complete. Achieving just one would have made Obama the most important president in a hundred years.”

Lessig’s twofold recommendations follow. The first is what he calls “citizen-funded elections”, possible “in a number of forms” - including a limit of $100 on what each citizen could contribute to political campaigns. The second would be to ban “any member of Congress from working in any lobbying or consulting capacity in Washington for seven years after his or her term.”

A political auction

Lawrence Lessig’s proposals no doubt might make worthy reforms. But Congress has been trying to go straight about funding for almost forty years. Numerous attempts have been made - and some even passed - to limit the amounts of money that can be raised for political campaigns, and the ways in which they can be collected. These efforts, including successive federal electoral-finance statutes, have all focused on the supply-side.

The supply-side has been the characteristic obsession of the Milton Friedmanite, neo-liberal right since Arthur Laffer first drew his famous “curve” on a cocktail-napkin. It replaced the characteristic liberal instinct for regulation.

There is a perfectly simple regulatory act that would probably do more than all the supply-side policies in the world to reduce the admittedly unsavoury influence of money and lobbying in Washington. That would be to ban political advertising.

That, after all, is where most of the money raised for political campaigns goes. The work of one scholar, Stephen J Wayne of Georgetown University, suggests that something like two-thirds of all campaign expenditure goes on advertising, especially TV ads, and another substantial proportion is spent on fund-raising itself. Moreover, TV ads account for a large share of expenditure as the campaign progresses, supporting a presumption that it is decisive in close campaigns (see Stephen J Wayne ed., Is This Any Way to Run a Democratic Government? [Georgetown University Press, 2007]).

The emphasis in discussion of campaigning has moved to use of the internet, for example by Howard Dean in 2004 and by Barack Obama himself in 2008. But the fact is that most money is still spent on paid TV ads, and if they were banned, the cost of campaigns would immediately fall very significantly.

In Britain, however abject its own politicians’ concern with their personal finances, political advertising on television is forbidden by law, and the same is true is most other developed democracies.

To most Europeans it would probably seem that paid political advertising, so far from being a palladium of democracy, is actually its opposite. It represents the use of money to resist or withstand public opinion, democratically expressed. The moment the suggestion of banning TV ads is made, the response from anyone familiar with American presidential campaigning is that it could not to be done because it would be unconstitutional - contrary to the first amendment.

What the first amendment actually says is this: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .”

The relevance of that very broad text (and I have omitted other clauses referring to freedom of worship and of assembly and petition) is that the Supreme Court (a conservative-dominated court) found in a lawsuit called Buckley vs Valeo, that paid television advertising was a form of free speech, and that therefore Congress might not abridge it.

Buckley, it may be noted, was James L Buckley, the brother of the better-known conservative champion, William F Buckley Jr, and the candidate of the Conservative Party in New York. (Valeo was an election official attempting to enforce a congressional-campaign finance law.) So while Buckley vs Valeo is indeed settled law - and is about to be reinforced by a new court judgment - it is hardly a neutral or apolitical enactment.

A political judgment

Now, however, so far from banning or regulating paid political advertising, the American polity has actually reinforced it. The Supreme Court, in a judgment of 21 January 2010 on the case Citizens United vs Federal Election Commission, actually narrowed the possibility of regulating political advertising; the probable result will be more campaign spending on TV as “a torrent of attack advertisements from outside groups aiming to sway voters”. The National Association of Broadcasters actually quantified the prospective hit at an additional $300 million in ads for the mid-term elections in November 2010 (see Ronald Dworkin, “The ‘Devastating’ Decision”, NYR Blog, 28 January 2010)

President Obama, a former law professor, immediately understood the political significance of the court’s decision. “The Supreme Court”, he said, in uncharacteristically populist language, “has given a green light to a new stampede of special-interest money in our politics. It is a major victory for big oil, Wall Street banks, health-insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."

Some commentators have attempted to argue that the ruling will result in more moderates being elected. That is a very perverse interpretation. The fact is that a very conservative Supreme Court has abandoned any shred of neutrality and delivered a judgment that reinforces the Republican Party at the very moment when President Obama is frustrated at every turn and when the prospect for substantial Republican gains in the 2010 mid-term elections look certain.

A year ago, many people in the United States, and even more around the world, hoped that Barack Obama’s victory would rescue American democracy from a conservative ascendancy that was dong it grave damage in financial and foreign policy and in its contempt for the constitutional tradition and the rule of law.

Now the court, the institution that in Bush vs Gore handed the 2000 election to the people who were to respond so disastrously to the atrocity of 2001 and the financial crisis of 2007-08, has made it less likely than ever that the corruption of American politics can be reversed.

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