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Free Speech and Elections: Back to the Drawing Board

From Richmond Times, Thursday, 28 January 2010. Also picked up at Leagle.com here: http://www.leagle.com/unsecure/news.do?feed=yellowbrix&storyid=140608648

The Supreme Court’s ruling in Citizens United v. FEC was remarkable in several respects. The Court announced the decision in a special session in the middle of January. It also overruled several other recent closely divided campaign spending decisions that addressed whether corporations have speech rights and, if they do, whether they may be restricted.

The decision deals with one of the important and enduring tensions in American politics and around the world. On the one hand we want to protect and maximize freedom of speech. On the other hand, we don’t want that freedom to translate into a loophole that lets special interests (especially corporations and others with lots of money) have an unfair advantage in elections. This battle over how to manage this tension has been fought many times in the courts. The corporations won this round. What is important to note, however, is that freedom of speech won as well. But, this may be a costly victory.

The nuances of campaign spending can be arcane. For example, someone was paid to decide that the limit on individual campaign contributions should now be $2,400 per primary or general election cycle. That’s $2,400—not $2,500 or $1,899 or…On the other hand, the nuances can be cast in truly profound terms.

One vitally important theme has characterized all of the Supreme Court’s campaign spending decisions. Beginning with Buckley v. Valeo in 1974 and continuing through Citizens United, the Supreme Court has had to wrestle with a subtle but profound issue: Is it fair (not to mention constitutional) to allow sitting incumbents to dictate the terms on which they campaign for re-election and by which they can constrain their potential challengers? In other words, do campaign spending laws embody a conflict of interest?

From time to time, members of the Court have addressed this issue directly. Perhaps most notably, Justice Scalia pointed out in McConnell v. FEC that the McCain-Feingold Act was nothing short of an incumbent–protection act because it restricted attack ads in the waning weeks of an election. This is a vitally important issue of political fairness.

Most debate about campaign spending is cast in terms of the need to restrict powerful or wealthy political actors from dominating the campaign process at the expense of individual voters. When cast in terms of wealthy fat-cats or corporate America’s “buying” an election or a candidate, this scenario is rife with corruption and unfairness. But the laws that prevent corporate America from spending and speaking also constrain political challengers and other interest groups. They render incumbents much more secure because they make it harder for competitors to amass and spend the resources necessary to mount an effective political campaign.

In this respect, while campaign spending laws may have been cloaked in the mantles of political reform and good government, they are also, unquestionably, a gerrymander of the political system that favors incumbents and suppress competition. The best example of this is the provision that gives the Democrats and Republicans federal money in advance of election cycles while requiring small parties and independents to cross a particular electoral threshold before they can qualify for a reimbursement of their expenses—after the election is over. Thus, an important part of the campaign spending debate addresses whether we can trust elected officials to rise above the conflict of interest that comes with writing the rules by which they are returned to office.

The campaign spending debate is not over, though. Citizens United declared a few laws unconstitutional but it has not resolved anything. Congress can make more laws concerning the conduct of elections and it surely will. We can only hope that Congress will collectively choose to write better campaign spending laws that do not appear to give incumbents an unfair advantage.

This is because, in the end, it still is necessary and important to manage the quantity and volume of political speech in the marketplace. Critics and pundits are already discussing whether the Citizens United decision will unleash a torrent of spending by corporations, unions and other political entities. There is no question that such spending needs to be controlled in the public interest. If, as some critics argue, money is speech that must be protected from virtually any restraints, political discourse will inevitably come to be dominated by a few powerful voices. Quieter or nascent voices that lack only money—not merit—will be drowned out in the noisy chaos of an unregulated political marketplace of ideas. That’s bad for democracy because it will make it difficult for voters hear meaningful political information amidst the cacophony.

In this respect, the campaign spending debate forces us all to consider how best to strike a balance between the individual and collective aspects of political speech. We still seek a principle on which we can justify restricting the volume of individual (or corporate) political spending and speech in order to ensure that voters have access to a diversity of political opinion. It’s the same principle that limits how fast we each can drive so that the roads are safer for everyone and which prevents our economic marketplaces from being dominated by monopolies. If we can regulate roads and the economic marketplace in the public interest, let’s hope our elected officials can do a better job with the political marketplace.

The Challenge of D.C. Representation

MARK RUSH TIMES-DISPATCH GUEST COLUMNIST
Published: March 23, 2009

LEXINGTON It’s hard to find anyone who disagrees in principle with the current efforts to grant the District of Columbia representation in the House of Representatives. The population of the District of Columbia is bigger than that of several states. Yet, those states have representation in the House and Senate and the District does not. This just doesn’t seem fair.

Unfortunately, it is completely and unquestionably unconstitutional. The Constitution says that states — and no other political entity — may be represented in the Congress. That’s it. D.C. can’t have representation. Neither can Puerto Rico or Guam. If you want voting representation in the House (and Senate) you need to be admitted to the Union as a state.

Critics might contend that this is as impractical as it is unfair. The process of admitting new states to the union is tedious. To admit a new state to the union requires as little as a simple majority vote in the Congress or as much as an amendment to the Constitution. To give the District of Columbia voting rights in the Electoral College required the passage of the 23rd Amendment. To give it voting rights in the Congress (without granting it statehood) would require a similar amendment.

Such an amendment already failed once. The D.C. Voting Rights Amendment did not get the support of the 38 states necessary for its passage and therefore expired in 1985.

THE CURRENT controversy surrounding the D.C. Voting Rights initiative demonstrates why it is better — though much more tedious — to seek statehood or representation via the amendment process. Altering the composition of the Congress (and therefore the federal balance of power) is not a garden variety political matter. It embodies a fundamental and enduring change to the manner in which the federal government will operate. The Framers of the Constitution agreed and therefore said that profound matters such as this should require more effort and deliberation than goes into the passage of ordinary laws. The controversy surrounding the current legislative initiative serves only to endorse the Framers’ wisdom.

The process by which legislation is made invites the influence of and interference by special interests. This is in keeping with the vision of politics that informed James Madison’s writing in the Federalist. In order to make it difficult for any one group to rise up and dominate our politics, Madison envisioned that the constitutional system — replete with separated national powers, a division of powers between the federal and state governments, and staggered electoral terms for the president and Congress — would make it difficult for majorities to govern efficiently or to pass laws quickly. Madison expected that the legislative process would be besieged my many interest groups with conflicting interests. They would check and balance one another in the same way that the three branches of the federal government would.

So, it should come as no surprise that the gun lobby would show up in the midst of the debate about granting the District of Columbia voting representation in the House, and demand that any representation for the District be premised on the repeal of some of its restrictions on firearms.

This is Madisonian politics at its best.

Of course, it seems unfair — or at least, foul play — that something as constitutionally fundamental as the representation of the District of Columbia in the House should be predicated on a Faustian bargain regarding gun control. But this is the nature of the legislative process. Since the current proposal to grant D.C. voting rights entails ordinary legislation, it is subject to all of the interest-group politics that afflicts any other piece of legislation.

WERE D.C. to seek and gain statehood (via the amendment process or via a congressional vote), a proposal such as that to repeal D.C. gun laws would be unconstitutional. Since all states have equal status under the constitutional system, it would be unconstitutional to attempt to admit a state with a gun law condition that would render it essentially a “second-class citizen.” The state of “New Columbia” would have all of the rights that the other 50 states have.

So, the current proposal to give D.C. voting representation may be doomed. It will either founder on the shoals of interest-group politics or, even if it passes, it will probably be declared unconstitutional.

Nonetheless, it is important to note that the Constitution does provide two ways to grant the District representation and voting power in the Congress. The real question is whether Congress has the political will or desire to use the means required by the Constitution to grant the representation its residents deserve.

Why Do We Need Senates?

SENATES

(This appeared in the Roanoke Times on Sunday, 17 January 2010)

In this winter of winters, two things are blowing across Virginia from the west: cold weather and the hint of political reform. Driven by its fiscal crisis and the byzantine political system that helped create it, California is in the midst of a profound debate about constitutional reform. Meanwhile, the deal cut with Nebraska Senator Bill Nelson to ensure the passage of the health bill in the U.S. Senate has energized the chattering classes as the nation’s op-ed pages and blogs continue to brim with consternation. How could the senate justify giving Nebraska special treatment in order to get the health care bill passed? Is this a Faustian bargain? Should we repair the Senate?

Actually, nothing is wrong with the Senate. The securing of Sen. Nelson’s vote represents nothing short of the smooth working of the American constitutional and political system. The founding fathers expected this to happen—take a look at James Madison’s discussion of pluralist politics in Federalist 10.

The federal Senate was designed to ensure that smaller states would retain influence in a large country. Since all states have equal representation in the Senate, cutting deals with small ones to get legislation passed is the constitutional cost of doing business.

While the U.S. Senate can therefore be justified in terms of protecting the smaller states, the same cannot be said about state senates. While long ago, state senates may have served important purposes in representing counties or discrete regional interests, they have not served that purpose since the U.S. Supreme Court declared that the one person, one vote rule applied to both houses of the states’ legislatures.

I doubt any observer of the map of Virginia’s Senate districts would conclude that the district lines were drawn in order to protect any identifiable or discrete interest. Every 10 years the senate districts (and the house of delegates districts) are redrawn to suit the interests of the party controlling each house. As a result, the Commonwealth can appear to be Democratic in one house and Republican in another—even though the same voters are voting.

So, why do we need two legislative chambers?

No, really. I mean no disrespect towards any member of our legislature. Our elected officials are bona fide citizen-legislators–they are not a class professional politicians. Depending on the year, the regular legislative session is only 30 or 60 days long. Our elected officials leave Richmond to live and work among their constituents as fellow citizens. They don’t get paid much. Our state senators make $14,000 for their troubles and the delegates make a bit less. They are noble public servants. If one wants to get rich, a general assembly salary won’t get you very far.

But, still…

If we sit back and look at Virginia’s government, a two-house legislature now seems to be redundant if not extravagant or unnecessary. We have an independent governor and a Supreme Court. Either one of them has the power to check the legislature. Why then, do we still need to render the legislature inefficient and slow by splitting its powers in two?

According to the General Assembly’s website, in 2009 and 2010, the Senate’s operating budget was $14.2 million and about $15 million, respectively. Corresponding figures for the House of Delegates were $24.1 million and $25.3 million. When cast in terms of the overall statewide budget (which approaches $50 billion), these figures are, indeed drops in the bucket. But, at a time when outgoing Gov. Kaine looked to trim a billion dollars from the state budget, the Senate’s price tag becomes more considerable. Virginians pay for 100 delegates and 40 senators and the staff, supplies, heat, running water etc. to support them. Could we not live with 100 or 40? Could we split the difference and reorganize the legislature into one chamber with 120 seats?

Ironically, it is Nebraska—the source of all the sturm and drang about the health care bill and the need to repair the U.S. Senate–that provides a compass for this discussion. It is the one state in the union that does not have a bicameral legislature. It has a legislature comprised of 49…senators. Regardless of what Nebraskans call their legislators, they only have one legislative chamber and the state runs just fine.

Moving from a bicameral to a unicameral legislature would reduce the cost of government and remove one layer of redundant legislative wrangling. It would diminish the costs of decennial redistricting and gerrymandering. It would present a clearer voice of the people and offer a clearer counterbalance to the governor. It would make Virginia government more efficient.

It is not about to happen.

Changing the structure of the legislature would require a constitutional amendment. This requires either a constitutional convention or a majority vote in two consecutive sessions of both legislative houses before submitting it to the voters. Call me cynical, but I can’t yet conceive of a scenario that would lead either house to dissolve itself.

Still, political reform is in the air. As I write this, the op-ed pages continue to ooze concerns about the U.S. Senate and health care. On our pacific coast, California is in the midst of constitutional reform. It’s as good a time as any for Virginians to think about their own government and ask if we can’t make some changes.

Mark Rush is Head of the Department of Politics at Washington and Lee University in Lexington.

Republican Resurrection?–Let the Buyer Beware

I submitted this piece to a couple of papers this month. So far no interest. Maybe as we get closer to November…

Republican Resurrection? Let the Buyer Beware.

Mark Rush
Washington and Lee University

If, as one great Republican named Lincoln said, “a house divided cannot stand,” then the GOP should get used to sitting down. The party last represented itself on the national stage as a four-headed monster comprised of Sarah Palin, John McCain, Mike Huckaby and Mitt Romney. Try to find a coherent center or common ground (besides party label) among these four candidates. It may take a while.

More evidence that the party is hopelessly divided against itself emanated from the election in New York’s 23rd congressional district election last month. Dede Scozzafava, the GOP nominee withdrew in favor of her Democratic opponent, Bill Owens because her candidacy had been mortally wounded by the challenge posed by Conservative Doug Hoffman. The Democrats took the district for the first time since 1993.

In hopes of getting the party back together, Newt Gingrich recently suggested that the Republicans need a new, revitalized Contract with America. Newt’s original Contract was a stroke of political genius. It led to the Republican takeover of the House of Representatives in 1994—for the first time in 40 years. The problem was that while the Contract was a masterstroke of campaign strategy, it was a disingenuous campaign promise.

A careful look at the Contract demonstrated that it promised very little. The GOP promised to bring questions to the floor of the House and to push for popular policies such as a line item veto for the president, special voting procedures on tax bills and so forth. But, these were pretty empty promises because the House of Representatives is part of a bicameral Congress that shares power with a President. The promises in the Contract bound no one because Newt Gingrich Gingrich and the House Republicans had no control over President Clinton (a Democrat) and, worse, the Senate Republicans. In fact, if one recalls, the Republican Senate Majority Leader Bob Dole was as much of an obstacle to the Contract’s success as President Clinton was.

Republicans may not care to admit it, but the call for a Contract was and is a prayer for constitutional reform. A “contract” would work in a parliamentary system of government. In such a system the executive and legislative powers would not be split between a President and Congress. They’d be fused into one branch of government led by a Prime Minister who was backed by a unified party.

Parliamentary systems of government combine the powers of our President and Speaker of the House into one Prime Minister—and they dispense with independent, powerful “upper” legislative houses known as Senates. They are designed to pursue contractual politics such as that proposed by Gingrich with an efficiency and partisan control that is literally foreign to our constitutional system. But, in a constitutional system such as America’s, “contract politics” embody hollow hopes and false, disingenuous promises. No member of Congress will be bound by a contract because—as all members of Congress know and as we saw in 1994—the constitutional system is designed to liberate legislators from such constraints.

So, in response to Republican offers of a new Contract with America, voters should abide by the Latin Maxim “Caveat Emptor” (“Let the Buyer Beware”). Political reform will require much more than a “contract” with one of the political parties. It will require nothing less than a sustained effort to change the manner in which the constitution organizes politics. So far, with exceptions of Californians, the American voters have not demonstrated a willingness to pay the price for that.