Government by Oligarchy


Lawrence Lessig, an advocate of real campaign finance reform, has an article in The Atlantic showing just how bad things have gotten in terms of the massive influence of the filthy rich on our elections. These numbers are pretty staggering:

That disease is just this: because of the way we fund the campaigns that determine our elections, we give the tiniest fraction of America the power to veto any meaningful policy change. Not just change on the left but also change on the right. Because of the structure of influence that we have allowed to develop, the tiniest fraction of the one percent have the effective power to block reform desired by the 99-plus percent.

Yet by “the tiniest fraction of the one percent” I don’t necessarily mean the rich. I mean instead the fraction of Americans who are willing to spend their money to influence congressional campaigns for their own interest. That fraction is different depending upon the reform at issue: a different group rallies to block health-care reform than rallies to block global warming legislation. But the key is that under the system we’ve allowed to evolve, a tiny number (with resources at least) has the power to block reform they don’t like.

A tiny number of Americans — .26 percent — give more than $200 to a congressional campaign. .05 percent give the maximum amount to any congressional candidate. .01 percent give more than $10,000 in any election cycle. And .000063 percent — 196 Americans — have given more than 80 percent of the super-PAC money spent in the presidential elections so far.

These few don’t exercise their power directly. None can simply buy a congressman, or dictate the results they want. But because they are the source of the funds that fuel elections, their influence operates as a filter on which policies are likely to survive. It is as if America ran two elections every cycle, one a money election and one a voting election. To get to the second, you need to win the first. But to win the first, you must keep that tiniest fraction of the one percent happy. Just a couple thousand of them banding together is enough to assure that any reform gets stopped.

If anything, he’s a bit naive here. Yes they can simply buy a congressman, or at least buy their vote, not so much by giving them money but by threatening to use their money against them in the next campaign. A single person funding a single SuperPAC or C4 organization can throw millions of dollars into “issues ads” in a given congressional district or state (for Senate levels races) and effectively kill someone’s chances of being reelected (don’t believe me? Ask Mark Schauer here in Michigan); that is a very powerful threat when a lobbyist walks into a legislator’s office and demands that they vote a certain way on a bill that could threaten (or improve) their profits.

Comments

  1. Mr Ed says

    The rich aren’t giving to a candidate they are investing in their future government regulators. The rise of the tea party anti-regulation an citizens united, coincidence, means that most districts have an anti regulation candidate running. Money invested in enough candidates means fewer meat inspectors at your slaughter house, diminished EPA at your chemical plant and a neutered CFPA over seeing my investments.

  2. d cwilson says

    a different group rallies to block health-care reform than rallies to block global warming legislation.

    But if you drew a Venn diagram of these two groups, there would be huge overlap.

  3. eric says

    It is as if America ran two elections every cycle, one a money election and one a voting election

    A buddy of mine likes to facetiously suggest that we need a few more legislative bodies. In one of which the seats would be auctioned to the highest bidders. That way you could put serious spending controls on the ‘voting elections’ because people who want to vote with their wallet are given their own representation in government, and the government can pocket a tidy sum at the same time. As a bonus feature, extra legislative bodies would make it harder to pass legislation. :)

  4. fastlane says

    This issue is one of the reasons I would like to see a selective service style appointment process for 50% of government offices. I know it would cause all kinds of issues, but they would be different issues. And we might occasionally stumble across that rare diamond in the rough that would actually be an effective and humanitarian leader that wouldn’t otherwise run for office.

  5. doktorzoom says

    under the system we’ve allowed to evolve, a tiny number (with resources at least) has the power to block reform

    Oh, not evolved. Designed. Maybe not all that intelligently, but they knew what they were doing, starting in the Reagan years.

  6. Ben P says

    Yes they can simply buy a congressman, or at least buy their vote, not so much by giving them money but by threatening to use their money against them in the next campaign. A single person funding a single SuperPAC or C4 organization can throw millions of dollars into “issues ads”

    This is actually where I have the most trouble with the Citizens United Decision. Ignore corporations or unions for the moment. Suppose I, as an individual, feel very strongly about a particular issue and want to make a TV commercial about that issue?

    What argument do you use to say that is not within my free speech rights.

    Saying that money isn’t speech isn’t quite on point because spending money on a TV commercial isn’t that different in kind from a microphone.

    Saying corporations shouldn’t have those rights isn’t on point either because I’m specifically talking about an individual to narrow the question.

    You can say that the risk of corruption outweighs any right to speak on particular election issues, but how many people do you see really arguing that?

  7. eric says

    Saying that money isn’t speech isn’t quite on point because spending money on a TV commercial isn’t that different in kind from a microphone.

    Microphones have time, place, and manner restrictions. For example, your right to free speech is not considered violated if the government puts a noise law in place preventing anyone from speaking above a certain (reasonable) decibel level on a public street. You still have your right to speak, and people are welcome to come out on the street and hear your political opinion if they want to.

    So, presumably you are perfectly fine with time, place, and manner restrictions on spending money on political TV commercials, if the goverment can show a legitimate civil interest is served by those restrictions, yes?

  8. chrisdevries says

    What I want to know is how influential advertising is in an election. You would think that most Americans would be so jaded by what they’re subjected to every 2 years that they wouldn’t pay attention to ANY advertising, recognising that everyone has an angle, and there is always more to the story than the ads are claiming. Citizens United is only a significant decision if the money that is spent by the oligarchs encourages people to vote when they wouldn’t have, or changes peoples’ vote from what it was going to be. I expect that the valued “independents”, those people whose votes are not guaranteed to any party, make their decision based on issues that matter to them, and no amount of advertising is going to change someone’s mind on something like a woman’s right to have an abortion, for example.

  9. d cwilson says

    What argument do you use to say that is not within my free speech rights.

    If it were an genuine issue ad, I would say, have it. But how many issues ads are really just attack ads in disguise? Maybe they don’t tell you who to vote for, but they certainly advocate that whom you should vote against

    Maybe what we need is a tighter definition of what constitutes an issue ad. Perhaps they should not mention any candidate for office by name in order to qualify as an issue ad.

    The other thing we should have is disclosure laws (remember when republicans supported them?) and complete transparency. If you feel strong enough about an issue that you’re willing to buy commercial time for it, then you should also be willing to put your name on it. Right now, we have a system where a handful of billionaires can sit in the shadows and pull the strings without ever having any accountability for it.

  10. says

    What argument do you use to say that is not within my free speech rights.. Ignore corporations or unions for the moment. Suppose I, as an individual, feel very strongly about a particular issue and want to make a TV commercial about that issue?

    Saying that money isn’t speech isn’t quite on point because spending money on a TV commercial isn’t that different in kind from a microphone.

    I disagree. Broadcasting an issue advertisement couldn’t be more different from making a speech in support of the issue. Billions of dollars has been invested in finding out what makes ads effective–i.e. how to manipulate viewers into buying what they are selling using music and imagery–and political operatives have learned those lessons well.

    But let’s be practical here. There is nothing more important than the free and fair election of a representative government–i.e. one that actually represents the people’s interests, not corporations, the super-rich, or special interest groups. Without representative government, there is no meaningful freedom of speech.

    Therefore when one right threatens to stomp all over another, then one (or the other) necessarily has to be curtailed in some way (hopefully, in as minimal a way possible.

    If the only way to protect the integrity of the electoral system and its ability to elect a representative government is to place some limits on freedom of speech, then there really is only one option, those limits have to be placed.

    But no system is perfect, and you’re right, if the corporations are banned from spending billions to elect people who will give them the laws they want, then individuals will probably be affected, but you have to weigh the two sides of the coin. If systemic corruption is prevented by instituting strict campaign spending limits then the prevention of some (wealthy) individuals from being able to spend lots of money advocating an issue (and really, how often does that happen?) is a price well worth paying.

    Most other nations have had little trouble in making this calculation and money has less of an effect on the outcome of elections (it’s still too much in many cases, but it’s not as bad as in the US). Of course, those other nations don’t have a written constitution that’s come to be considered no less than holy scripture by a large chunk of the American population, and therein lies the biggest problem.

  11. Mr Ed says

    What argument do you use to say that is not within my free speech rights.

    You can’t yell fire in a crowded movie theater, you can’t slander some one in the newspaper and you can’t smoke pot as part of your religion. There are some limits on rights typically where they infringe on others rights. I can speak at a town meeting but I can’t bring a bull horn to prevent others from being heard. I give fifty dollars to a candidate and you give a hundred but at what point does a large donation become the bull horn?

  12. eric says

    What I want to know is how influential advertising is in an election.

    I suspect the answer is “very.” More than most of us are comfortable admitting, because if we admit that everyone else is susceptible to this social manipulation, we have to face up to the thought that we are too.

    Argumentum ad populum is a logical fallacy, but I’m going to commit it in this case. I’m willing to give the vast, vast amount of industry time and money spent on advertising some weight. If it didn’t work, I can’t imagine we wouldn’t have figured that out by now. Some smart businessperson would have zeroed their ad budget, used the savings to reduce their unit price, outcompeted their competitors by doing so, and that trend would’ve snowballed. Likewise with politicians. We can think badly of them all we want, but I very much doubt they would be taking ad money from special interests groups if the best empirical analysis of advertisment effects showed that ads made little to no difference.

  13. Ben P says

    Microphones have time, place, and manner restrictions. For example, your right to free speech is not considered violated if the government puts a noise law in place preventing anyone from speaking above a certain (reasonable) decibel level on a public street. You still have your right to speak, and people are welcome to come out on the street and hear your political opinion if they want to.

    So, presumably you are perfectly fine with time, place, and manner restrictions on spending money on political TV commercials, if the goverment can show a legitimate civil interest is served by those restrictions, yes?

    That doesn’t work. Time place or manner restrictions have to be content neutral

    Saying that a person can broadcast TV commercials about soap, but can’t broadcast TV commercials about their opinion on a politician is decidedly content neutral. So that law doesn’t apply.

  14. Ben P says

    I disagree. Broadcasting an issue advertisement couldn’t be more different from making a speech in support of the issue. Billions of dollars has been invested in finding out what makes ads effective–i.e. how to manipulate viewers into buying what they are selling using music and imagery–and political operatives have learned those lessons well.

    This is disingenous.

    Suppose I spend lots of money taking public speaking classes ad hiring speechwriters to draft a compelling speech and spend a lot more money flying a private plane to every town in the united states to give that speech.

    Does that change the fact that it’s protected speech?

    But no system is perfect, and you’re right, if the corporations are banned from spending billions to elect people who will give them the laws they want, then individuals will probably be affected, but you have to weigh the two sides of the coin.

    Here’s where you miss the point of the citizens united decision.

    It’s easy to bandy about lines like “corporations are people,” and I agree on the point that corporations are creatures of statute.

    But ultimately it’s either a person or a group of people exercising rights to free speech.

    If public policy creates a compelling justification for limiting those rights in some manner, I can understand that, but so few people really want to argue that because they consistently want corporations to be banned, but claim public interest groups or unions are somehow different.

  15. eric says

    I can speak at a town meeting but I can’t bring a bull horn to prevent others from being heard. I give fifty dollars to a candidate and you give a hundred but at what point does a large donation become the bull horn?

    Exactly. I’d add that this is one area where its perfectly reasonable to modify restrictions based on changes in technology. When there were only a few networks, it made perfect sense to say that a limitation on paid advertising was a significant infringement on a citizen’s right to ‘speak’ their political opinion. But now we have the internet. Blogs. If I want to know Sheldon Adelson’s opinion or the AARP’s opinion or the NRA’s opinion, there are many ways I can get that opinion that don’t involve paid advertising. Does anyone like watching advertisements? No. So its not too much of a reach to say that a limitation on political adveritising is, given our current technology, a limitation on one manner of unwanted speech when there are many other manners any citizen can use to reach the same audience.

  16. Ben P says

    can speak at a town meeting but I can’t bring a bull horn to prevent others from being heard. I give fifty dollars to a candidate and you give a hundred but at what point does a large donation become the bull horn?

    you can’t bring a bull horn, but if you don’t use the bullhorn you can whatever you goddamn well want. (well, town halls are poor examples because typically they are not true public forums, but set that aside for the moment).

    When you want to ban political advertising, you are not also banning commercial advertising, you are not banning bullhorns, you are saying some people can use bullhorns and others can’t.

  17. Ben P says

    No. So its not too much of a reach to say that a limitation on political adveritising is, given our current technology, a limitation on one manner of unwanted speech when there are many other manners any citizen can use to reach the same audience.

    Again, complete non sequitur.

    People’s rights can’t be limited based on the fact that you “don’t want” their speech. As a matter of fact that’s exactly why the first Amendment was put into place. Popular speech doesn’t need any protection. You are perfectly free not to listen.

  18. says

    Ben, I’m not missing the point about Citizens. I understand the point about corporations being groups of people. The problem remains the same if it’s a bunch of billionaire individuals monopolizing the airways with political advertising.

    For example, there is nothing to stop a bunch of billionaires getting together and buying up all the TV networks in the country and then agreeing to ban all political advertising on TV except that of which they approve or create for themselves.

    It’s still free speech, but it would almost certainly have a profoundly corrupting effect on the way our government works. I think I made it clear that if you want to limit corruption in government then you have to limit the influence of money on elections, and if spending money is directly related to free speech in any way, then it follows that laws to protect the integrity of elections will have some (at least peripheral) effect on freedom of speech.

    I really don’t see a problem with doing this — as I said, other countries do this all the time and the majority that do have better and healthier electoral systems than America does. In the UK, there is no paid political advertising on TV at all, ever, and all major TV stations are required by law to provide balanced coverage during election cycles.

    It bears repeating, if the American election system becomes corrupted by the billions of dollars being spent in the name of freedom of speech, then there is a point at which the right to freedom of speech becomes worthless.

    Imagine if, in the future, side arms become powerful enough to take out whole city blocks with one round. Would people still defend the absolute right to bear those arms if their cities were being burned to the ground by a small minority of gun owners?

  19. Nathair says

    Time place or manner restrictions have to be content neutral

    Saying that a person can broadcast TV commercials about soap, but can’t broadcast TV commercials about their opinion on a politician is decidedly NOT content neutral. So that law doesn’t apply.

    Content neutrality does not mean soap ads and political ads, it means you cannot restrict some political ads, based upon their message, while permitting others. Specifically the Supreme Court has said content neutrality hinges upon “whether the government has adopted a regulation because of a disagreement with the message it conveys.”

  20. Ben P says

    Content neutrality does not mean soap ads and political ads, it means you cannot restrict some political ads, based upon their message, while permitting others. Specifically the Supreme Court has said content neutrality hinges upon “whether the government has adopted a regulation because of a disagreement with the message it conveys.”

    Yes it does actually. You’re confusing content neutrality with viewpoint neutrality.

    Time place and manner restrictions must be both.

    As tacitus says, there may well be a valid basis for regulation of this sort purely on the basis that the unfettered ability to buy political advertising is a dangerous thing for a democracy and presents a compelling interest.

    However:

    1. you can’t pretend you’re doing anything other than restricting political speech.
    2. such regulations do have to be both viewpoint and content neutral.

  21. lancifer says

    Ben P,

    So your answer to the corrupting influence of letting people, corporations and unions spend their own money on political speech is to empower a government arbiter to decide on the “neutrality” of both viewpoint and content of their speech? And then to regulate the amount and content of the speech to which each is entitled?

    Seriously?

    Is there going to be an endless regression of governing authorities to ensure the “neutrality” of the underlying authorities? Who is going to appoint these “impartial” arbiters?

    Look, people with more money and time have the ability to say more things.

    Deal with it.

    Do you suppose that the electorate is measuring the “amount” of speech for each candidate and then casting their votes accordingly, rather than weighing the validity of the arguments there of?

    Do you disrespect the intellects and ability of the electorate to make their own informed opinions to the degree that you must spoon feed them the “correct” ratios and amounts of information?

    If your opinion of the electorate is so low why not just anoint these “arbiters” with the power to decide our representatives or even just tell us directly what to do?

  22. lancifer says

    tacitus,

    For example, there is nothing to stop a bunch of billionaires getting together and buying up all the TV networks in the country and then agreeing to ban all political advertising on TV except that of which they approve or create for themselves.

    Well, then these omnipotent oligarchs should just use their limitless wealth to employ a vast army of mercenaries to directly enslave us.

    C’mon, tacitus do you imagine that media resources are a finite quantity? That some nefarious consortium of “billionaires” could actually “buying up all the TV networks in the country”? That no media outlet would be beyond their Machiavellian reach?

    How about we return this discussion to reality?

  23. KG says

    Maybe what we need is a tighter definition of what constitutes an issue ad. – d cwilson

    Much simpler: a complete ban on broadcast political advertising. With the exception of a small number of clearly labelled “party political broadcasts” during general election campaigns (which last three weeks), that’s the case in the UK, and I think most democracies are similar. It’s surely clear that the USA’s permissive approach is one factor in the predominance of personal attacks in American politics, and the rise of the raving right.

    C’mon, tacitus do you imagine that media resources are a finite quantity? – lancifer

    Stone me, but you”re stupid. The oligarchs don’t have to buy up literally every broadcaster to guarantee the predominance of their views: just the rights to the most popular sporting events and drama series. In fact, you’ve failed to notice that this oligarchic media takeover has already happened to a very considerable degree. The range of opinion available on major US networks is stiflingly narrow.

    Do you suppose that the electorate is measuring the “amount” of speech for each candidate and then casting their votes accordingly, rather than weighing the validity of the arguments there of?

    Amazingly ignorant of human psychology as well. Why the fuck would corporations spend billions advertising their products if carefully crafted, frequently repeated messages didn’t affect the decisions made by those receiving them?

  24. unemployedphilosopher says

    lancifer,

    Do you disrespect the intellects and ability of the electorate to make their own informed opinions […]

    I’m not speaking for Ben here, but… given that Michele Bachmann and Steve King still have jobs? Yep.

    Most people, as I have said before, are happily ignorant asshats who couldn’t political their way out of a wet paper sack with an axe. (Yes, I just verbed “political”, and yes, it weirds language, but it’s fun, so I’m keeping it.) (Bonus points if you get that reference.)

  25. eric says

    Ben P:

    Saying that a person can broadcast TV commercials about soap, but can’t broadcast TV commercials about their opinion on a politician is decidedly [not] content neutral. So that law doesn’t apply.

    Have you seen a cigarette ad on US TV lately? No? We do, in fact, legally regulate ads in precisely the way you imply above would be illegal. IANAL so I don’t know the exact reasoning behind it, but the precedent is there: “TV advertising” is legally treated as a manner of speech that can be regulated or restricted without infringing on one’s right to speak in general.

    And the cigarette example shows somthing else: that we, as a society, recognize that TV advertising can have an unusually and undesirably strong influence on behavior. More than other types of media, because tobacco companies are still allowed to advertise via other manners. Like print.

    If public policy creates a compelling justification for limiting those rights in some manner, I can understand that, but so few people really want to argue that because they consistently want corporations to be banned, but claim public interest groups or unions are somehow different.

    Looking at the above posts, I see nobody arguing the corporate-citizen issue. Everyone who has responded to you has argued that the government’s power to regulate advertising is going to come from some compelling justification (as you put it).

    So (1) you seem to be attacking an argument nobody here is making, and (2) it doesn’t sound like you are too far apart from your critics. We’re just haggling over what counts as a compelling public interest.

    I would argue that the power of visual media to sway opinion regardless of its veracity means that this manner of speech should be more regulated than others. TV is more likely than a print or radio advertisement to engage the emotions to such an extent that it overrides someone’s ability to think rationally. The state has a compelling interest in having elections decided on good information, reason and judgement rather than false information and emotion, so it has a good justification for regulating use of this particular manner of messaging. Do you want to write a blog? Be my guest. Do you want to take out a page ad in the NYT listing your policy positions? Not only do I think that should be allowed, I think it should be encouraged.

    Moreover, there are very easy ways to regulate it in a content-neutral manner. We already do, by requiring stations to give the same amount of free air time to all candidates. Many countries use ‘media blackouts’ a few days before an election. We regulate the types of advertisements that can be shown during ‘prime time’ (a time restriction). The precedents are already there. You already live in a world where the restrictions you claim we can’t do, we already do. We just have to decide to apply them to the case of political campaigns.

  26. says

    A buddy of mine likes to facetiously suggest that we need a few more legislative bodies. In one of which the seats would be auctioned to the highest bidders.

    Recapture the $$ into the treasury instead of into the hands of television companies and marketing wankers, sure.

  27. Jordan Genso says

    I’m glad that Ben P posed his questions, as it has led to an interesting discussion.

    The only thing I would add to the conversation is to ask Ben P if he thinks it is legit to limit direct campaign contributions? If money = speech, then should we limit an individual’s ability to “speak” more to a politician? If the indirect contributions through issue ads can be unlimited, why not just allow the direct contributions to be so as well? I would think the justification for one should work as the justification for the other.

  28. says

    If money = speech, then should we limit an individual’s ability to “speak” more to a politician?

    If money = speech then we ratify inequality as the basis for a political system. I know that’s not what you’re suggestion – I just thought I’d mention that. ‘Cuz the Koch brothers’ speech is apparently worth about 30 million times what mine is worth, in Washington.

  29. Jordan Genso says

    @29 Marcus Ranum

    Yes, my position is that “money = speech” is a flawed equation.

    I have no desire to see a system of equal financial outcomes for all (aka socialism or whatever you want to call it), but I would like us to have a system of equal political power for all. I don’t know if that is considered radical or not, but I think democracy relies on each person having equal say in electing our representatives in government, and allowing “money = speech” undermines that structure.

  30. eric says

    I have no desire to see a system of equal financial outcomes for all (aka socialism or whatever you want to call it), but I would like us to have a system of equal political power for all.

    Equal representation for all might be a better way of phrasing it. A judge or the Secretary of an executive agency has more political power than me; I’m okay with that. :)

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