Conservative Washington Post columnist and Fox News contributor George Will cherry-picked outlier examples of campaign finance violations while ignoring legitimate concerns about the potential for big-money donors to corrupt elections and balloted measures .
In his October 30 column, Will attacks campaign finance reform and celebrates the Supreme Court's infamous Citizens United decision, which opened the floodgates for large donors to corrupt elections with outsized contributions. Will highlights a pair of lower-court cases where judges struck down regulations on political speech that affected seemingly small-time civic participation to downplay the danger of political corruption, conveniently overlooking how these decisions might make it easier for large corporations to obfuscate their own political participation:
Brick by brick, judges are dismantling the wall of separation that legislators have built between political activity and the First Amendment's protections of free speech and association. The latest examples, from Mississippi and Arizona, reflect the judiciary's proper engagement in defending citizens from the regulation of political speech, a.k.a. “campaign finance reform.”
In 2011, a few like-minded friends and neighbors in Oxford, Miss., who had been meeting for a few years to discuss politics, decided to work together to support passage of an initiative amending Mississippi's Constitution. The amendment, restricting the power of the state and local governments to take private property by eminent domain, was provoked by the U.S. Supreme Court's 2005 Kelo ruling that governments could, without violating the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”), take property for the “public use” of transferring it to persons who would pay more taxes to the government.
The Mississippi friends and neighbors wanted to pool their funds to purchase posters, fliers and local newspaper advertising. They discovered that if, as a group, they spent more than $200 to do these simple things, they would be required by the state's campaign finance law to register as a “political committee.” And if, as individuals, any of them spent more than $200 supporting the initiative, they must report this political activity to the state.
Mississippi defines a political committee as any group of persons spending more than $200 to influence voters for or against candidates “or balloted measures.” Supposedly, regulation of political activity is to prevent corruption of a candidate or the appearance thereof. How does one corrupt a “balloted measure”?
The answer to this question should be obvious, and even Will begrudgingly admits “there is some slight informational value in knowing where money supporting a voter initiative comes from.” Although Will doesn't mention it, the judge in the Mississippi case clearly left the door open for future regulations of political speech, giving a nod to the possibility of improper influence with respect to ballot initiatives:
Significantly, the Court does not hold that Mississippi may not regulate individuals and groups attempting to influence constitutional ballot measures. Instead, the Court holds only that under the current regulatory scheme, which is convoluted and exacting, the requirements are too burdensome for the State's $200 threshold.
Nevertheless, Will goes on to call the Supreme Court's decision in Citizens United -- one that allowed a tsunami of corporate money to enter the election process -- an “excellent” one. But even Citizens United noted the corrupting danger of unchecked money in the political system, and transparency was explicitly recognized as the critical protection against such a problem.
Will is not alone in misleadingly framing these political speech cases as some sort of “David and Goliath” scenario. A column in Forbes also wondered whether the Supreme Court would “defend free speech for the little guy,” using the example of a group of Florida residents who wanted to join together to spend $600 on political advertisements. While these stories may seem unfair, they are hardly evidence of campaign finance laws run amok.
The cases cited by Will and the Forbes piece ignore the risk of corruption and fraud in the more typical way big-donor money influences elections, or even when billionaires use the ballot measure process itself to influence state politics. In fact, billionaire donor networks have increasingly turned to state ballot measures as a way to codify conservative values and insulate corporate wealth. As Mother Jones reported, the conservative, billionaire Koch brothers were behind a network of secret donations intended to sway the outcomes of two different ballot initiatives in California. After a year-long investigation, the California attorney general determined those donations violated state law:
[On October 24], the California attorney general and the state's top election watchdog named the “Koch brothers network” of donors and dark-money nonprofits as the true source of $15 million in secret donations made last year to influence two bitterly fought ballot propositions in California [one would have raised taxes on the wealthy and the other would have made it more difficult for labor unions to collect political donations]. State officials unmasked the Kochs' network as part of a settlement deal that ends a nearly year-long investigation into the source of the secret donations that flowed in California last fall.
As part of the deal, two Arizona-based nonprofits, the Koch-linked Center to Protect Patients Rights and Americans for Responsible Leadership, admitted violating state election law. The settlement mandates that the two nonprofits pay a $1 million fine to California's general fund, and the committees who received the secret donations at the heart of the case must also cut a check to the state for the amount of those donations, which totaled $15.08 million.
But those hoping to get the identities of the actual donors behind this dark money scheme are mostly out of luck. The settlement deal does not include the names of any flesh-and-blood donors--just the names of the shadowy nonprofits that shuffled money around the country during last year's elections.
California officials hailed the settlement as a new record, but conceded that full disclosure was out of their reach. “This case highlights the nationwide scourge of dark money nonprofit networks hiding the identities of their contributors,” Ann Ravel, the chairwoman of California's Fair Political Practices Commission, said in a statement. “The FPPC is aggressively litigating to get disclosure and working on laws and regulations to put a stop to these practices in California.”
It makes sense, then, that states would put certain restrictions in place to ensure transparency in the democratic process. This is especially important now, given that the Supreme Court has already heard arguments in a case called McCutcheon v. FEC, which could open the floodgates for billions more dollars to flow into federal elections. Depending on how the Supreme Court decides the case, McCutcheon could crowd out large groups of small donors in favor of a small group of non-diverse elites. For Will to disregard the importance of transparency in government, the other key component of Citizens United, and to then dismiss completely well-founded fears of corruption in the funding of ballot measures is, frankly, bizarre.
Not everyone agrees with Will's extreme position. In agreeing that the names of the citizens who signed a petition to get an anti-LGBT referendum on the ballot must be publicly disclosed, conservative Justice Antonin Scalia wrote:
Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously ... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
George Will has, amazingly, found a way to argue a point that is too far-right for even Justice Scalia.