Sunday, February 5, 2012

Legal Fiction

Most people are at least familiar with Stephen Colbert's name, even if you've never watched a single episode of The Colbert Report on Comedy Central. That's probably because the man is a self promotional machine. For example, back in 2009 NASA did a poll to decide on a name for the newest node added to the ISS (International Space Station). Colbert exhorted his viewers to vote and ultimately he actually topped the list. NASA did, ultimately choose to name it 'Tranquility' but Colbert still got his name in space. NASA named the treadmill that would be housed in that node after him. Well, to be accurate they named it the Combined Operational Load Bearing External Resistance Treadmill, or COLBERT. In his typical deadpan, Colbert responded that:

"I think a treadmill is better than a node ... because the node is just a box for the treadmill. Nobody says, 'Hey, my mom bought me a Nike box.' They want the shoes that are inside."

While it may seem frivolous on the surface, the incident did draw more attention to the often forgotten ISS and NASA in general. And ultimately I think that's what he wanted all along. Celebrities have long used their popular reach to raise awareness of a cause, Colbert just does it with his own unique, over the top, faux conservative flair.

This election season, Colbert is using the same sort of technique to draw attention to something that is far more important to our democracy, campaign finance. Specifically the practical results of the Supreme Court's so called 'Citizen's United' decision. Over the last year, Colbert has, in the guise of his uber-Conservative on-screen persona, laid bare the real world implications of that decision. It began with his declaration that he would be forming his own 'Super PAC,' a political action committee that is allowed to raise unlimited donations from any individual, group or business. While Super PACs are required to disclose donors, like regular PACs, they can usually take advantage of technicalities to delay disclosure far longer and sometimes even until after the election itself, thus making the disclosure more academic than enlightening. In successive episodes throughout the year Colbert went through the process, always doing so with his lawyer, Trevor Potter, on hand to show that there was a serious legal footing to the segment. As Potter said in an interview with NPR in September 2011,

"It's not a joke. Because, as he has put it, he wanted to bring people in behind the curtain so they could see [how superPACs] actually worked and what they actually did."

He certainly does that. To watch these segments is to see the threadbare legal fiction that has been created to allow cash to pour into our political system with minimal oversight. Literally, it requires only a few sheets of paper to be signed in order to 'upgrade' a regular PAC, which operates under more restrictive rules, to be a Super PAC. From what I can tell, it takes more effort and paperwork to setup a one man, home business than it does to setup a Super PAC that can collect and administer donations into the tens of millions of dollars. And the home business probably requires more oversight!

One of the other fictions at work here is that a candidate cannot directly coordinate with a Super PAC. The operative word here is 'directly,' as most of the current gang of Super PACs are actually being run by close associates and, in many cases, former senior campaign staffers! Not a lot of separation there, thus making the Super PAC, functionally, just an extension of the candidate's formal campaign apparatus. Colbert pointed this out in a recent episode, with his usual comedic twist. During a very brief 'campaign' to run for President of the United States of South Carolina, he transferred control of his SuperPAC to Jon Stewart of The Daily Show. A few days later he spoke to his audience about not being able to directly coordinate with Stewart about the Super PAC's activities and then proceeded to openly ponder what Stewart might do with all that Super PAC money. Indirectly mocking Newt Gingrich's earlier press conference where he 'called on' the Super PAC supporting his campaign to not run a particular ad in its current form. This is apparently not coordinating. It seems that as long as the campaign staff doesn't meet with Super PAC representatives or call them up directly, you can coordinate via the media to your heart's content. Thus this so called restriction is merely a minor inconvenience rather than an actual impediment.

There are a lot of things we need in our electoral system, but more money sure isn't one of them. What benefit does our Republic actually gain from hundreds of millions of dollars in campaign donations? Does it ensure just and fair elections? Does it give us candidates who are more dedicated to serving the people? Does it help provide us with unbiased facts on, not just what the candidates say they stand for, but what they've actually done? Does it make elected officials more trustworthy? That would be a 'No' on all accounts. What it does accomplish is to ensure our elected politicians feel indebted to those who flooded their campaigns with cash and not the rule of law or service to their constituents.  It allows the candidates to overwhelm the voters with a flood of propaganda that neither informs nor educates them, but simply hammers them with repetitious soundbites and wild hyperbole. It all but guarantees that, if elected and faced with a choice between safeguarding their constituents or smoothing the way for a lavish donor, that the voter will almost always lose. There is no doubt that money is one of the greatest corrupting forces in this world and the one place we do NOT need more corruption is our government! There's a saying 'that everyone has their price' and as long as we allow private money to run rampant in our electoral system we will ensure that politicians are consistently able to achieve their particular asking price.


  1. I think few people like the concept that an election is all about who spends the most money. But is "probably requires oversight" a Freudian slip? Which brings up the problem that their are only two pure solutions a) government oversight and restriction of liberty or b) liberty. If you ask someone if they think an election should be influenced by money, they will probably say no. But if you ask them if they trust law makers to determine how much a person or entity is permitted to spend on something, and what to what level their freedom of expression will be abbreviated as it relates to an election or anything else, I suspect most will also say no.

  2. Reply to Anonymous, above:

    The problem with your point is that it's based on flawed logic. You start out with point 'A', then 'B' then for some unfathomable reason you jump to 'P' and declare that your point has been made. Look, limits on campaign finance for all parties is hardly a restriction of liberty! It's a reduction in scope, not a limit on your freedom. Your argument is like saying a law against theft is restricting your liberty. Part of living in a civilized society is about accepting some limits on what you are allowed to do. Think about it, just following traffic regulations is giving up some of your freedom, yet we all seem to agree that it's a worthwhile trade off.

    It's the same for campaign finance. Allowing money to flow unrestricted may make you feel like you have more freedom, but if it ultimately corrodes and undermines our entire system of government it will, ironically, result in less liberty in the end for everyone. You have got to step away from this warped idea that all regulation is evil. That is as silly a stance as someone saying that all regulation is good. Reality, as usual, lies somewhere in the middle. We don't want a police state or anarchy, so we find the reasonable middle ground that protects us yet gives us freedom to live our lives.

    Erik Prince

  3. Nothing flawed about it. You just missed the point. Current laws place restrictions on the candidate, not the public. The public's right to support a candidate are protected by the First Amendment. The exclusions to the First Amendment are fairly brief and explicit; inciting or committing a crime, treason, obscenity, etc. As it relates to campaign finance, that exclusion has already been tested and decided (Buckley v. Valeo). The comparison of traffic code is irrelevant since traffic codes exist. A law can not be broken before it exists. Creating such a law as you describe has been tried in the past and has been repeatedly struck down by the courts. Current campaign finance laws make a logical compromise by restricting the actions of the candidate rather than restricting the scope of First Amendment protections for all (thus we have PAC's). So the argument that campaign finance as it is today somehow "corrodes and undermines our entire system of government" is absurd, as our entire system of government is based on the same Constitution for which you have stated a desire to disregard or limit in scope.

    Aside from logical arguments there remains the practical problem that restricting individual's ability to support a candidate is entirely unenforceable even if there were such a law. Again, something that has been tried and failed. You might counter this with an argument that PAC's are not individuals, but are groups. But then who will decide what constitutes a group and what is the minimum count? Two people, a church, a labor union? Unenforceable and completely impractical.

    If you think it's so easy, outline that law that would limit contributions, test it against the Constitution and provide a thesis proving the practicality of implementation and enforcement. Good luck with that.

    1. I think YOU are the one missing the point. Your reply is dripping with semantic slight of hand. Instead of droning on about chicken and the egg arguments, why not focus on what is best for the long term stability of the country? I know Americans aren't much for long term thinking. We seem much more at home with paycheck to paycheck and the next quarterly earnings report, but that kind of thinking guarantees erosion of our democratic system and debacles like the tech and houseing bubbles.

      As to the Constitution, First off, it is a brilliant document, but it's not perfect, and they knew that when they wrote it! Hence the mechanism for amendments. Secondly, as well designed as the Constitution is in it's basic structure of checks and balances, it has a fatal flaw. If corruption becomes more than just a few self serving politicians and spreads across the entire system, then the Constitutional checks and balances become worthless. Once a corrupt President can subvert the courts and a corrupt congress can pass laws legalizing their own misdeeds and a judicial system 'enterprets' the Constitution in new and unintended ways the Constitution becomes just a musty curiosity in a glass case. Can this happen overnight? Of course not, but it can happen over a few generations. Many nations in history have suffered similar fates, so it's hardly far fetched.

      You are so hung up on attaining some purity of freedom that you are ignoring the point I'm trying to make. I am not saying you can't support the candidate of your choice. Go ahead, volunteer, speak out and organize! But donations are only one way you can support a candidate, not the only way. The problem here is this bizaare, and oh so American idea that money equals speech. This is an idea that can only exist in a capitalistic society where we seem determined to find a monetary equivalent for everything. Money is NOT speech. In our system, money is actually used as a throttle for speech. The more money the more volume and more pervasive your speech. The less money, the more meaningless your speech becomes because no one will ever hear it! Money in our society is AT LEAST as much of a restricter of speech as an enabler. Everyone can stand up and speak their mind, but only a lucky few can sit down to dinner for a few hours with the most powerful politicians in America. Equating money with speech is just another way of saying that the rich are important and the poor are not.

      I think I already proposed a rough idea of a solution in my previous 'Dictator for a Day' post and I think it's entirely feasable and could be crafted as a fair and reasonable Constitutional amendment. I don't lightly seek to add restrictions to the Constitution, but I cannot see how enforceing a level playing field for all candidates is particularly restricting. The candidates can still say anything they could before, volunteers can still support them as before, debates would continue as before. The only thing that would change is that there would be a limit on how big a pot of money they could amass. A limit that ALL candidates would share, thus opening the door for candidates who do not have personal fortunes or wealthy donors on speed dial.

      In my opinion, the most dangerous thing for our nation, long term, is not terrorism or drugs or foreign invasion. It's political and judicial corruption fueled, primarily, by obscene sums of money. Money is arguably the most corrupting influence on the face of the planet and I'm not at all comfortable seeing it flowing in rivers into our electoral system. Absolutely nothing good can come of it.

      Erik Prince

    2. I guess you will be able to hand pick the judges in the dictatorship of Erikstan, and of course write your own constitution if you choose to have one at all. But the supreme court judges here in the real world disagree. So will Erikstan be something like I hereby officially withdraw my application to be a supreme court justice in Erikstan. So what will people in Erikstan use to exchange goods and services since the concept of money is immoral? Sex, guns, chickens, tofu? I better leave it at that before I pee in my pants.

    3. Ah, so I see we've stopped having a discussion and reverted to pure, pointless snark. Enough said!

      Erik Prince

  4. Please excuse me SUPREME LEADER, but your humble subject is of feeble mind and does not understand. Candidates will no longer be able to raise funds exceeding the amount to be set forth by the SUPREME LEADER. But PAC's are not candidates. So will there also be a limit on what groups of HUMBLE SUBJECTS may raise in support of their candidates and causes? Or will the supreme leader also decree that all groups of HUMBLE SUBJECTS with a common purpose are illegal? And wouldn't that effectively outlaw all groups of HUMBLE SUBJECTS with a common interest?


Please let me know what you think, even if it's to disagree.