A commemoration of the Constitution calls for impertinent arguments. Mine is this: Our campaign-finance regime ought to be as unregulated as possible, but not for the reasons commonly supposed.
Ganesh Sitaraman has written an oped in the New York Times arguing that our Constitution was not built for a society as unequal as our has become. Even leaving aside the claim that our society is becoming substantially more unequal—one I have contested, the essay is mistaken. First, the Constitution as amended today empowers the federal government to engage in regulatory redistribution and progressive taxation to reduce economic inequality. Second, the Constitution of 1789 on which Professor Sitaraman principally focuses was consciously built to protect against legislative attempts to mandate more equality. The populist demagogues with whom the Framers were mainly concerned were those who would bamboozle the populous into debtor relief legislation and other wealth destroying schemes that could be sold, just as in our day, as aids to poor and retribution to the rich. Sitaraman misunderstands both our contemporary Constitution and our original Constitution.
After the 16th amendment and the New Deal Court’s interpretation of the Commerce Clause, the federal government has plenary powers of income taxation and regulation. There is nothing to prevent the left wing of the Democratic party from making our income tax code even more progressive than it already is.
Richard Hofstadter wrote a famous essay, The Paranoid Style in American Politics. It is about the recurring tendency of our political actors to allege that there is a vast and powerful conspiracy against the public interest. The Masons were alleged to be at the center of the conspiracy early in the nineteenth century, the Catholics later in the century.
In his opposition to Judge Gorsuch, Senator Sheldon Whitehouse embraces this style of argument. In his opening statement, he asserted that there is a “machine” that helps conservative Republicans get on the Supreme Court and then write amicus briefs to show them which way to rule. He endorses the characterization of the Roberts Court as a “delivery service” for the Republican party and right-wing ideology. How different in terms of respect for judicial independence is calling the Supreme Court a “delivery service” from referring to a judge as a “so-called judge?” Senator Whitehouse claims that this “delivery service” continually offers up cases against the public interest, protecting gerrymandering, money in politics and the rights of corporations against the people.
Like all conspiracy theories, it has a simplicity about it. But its simplicity is delusive because the world is a more complicated place.
One of the best disruptions of Donald Trump has been his decision to nominate many officials to the Cabinet who have been enormously successful in business. Such appointees have run major organizations and thus can use their substantial management experience to impose order on the sprawling government bureaucracy. They also bring the perspective of business into the heart of government. A commercial republic can thrive only if, from time to time, officials set about lifting off the dead weights that democratic practices tend to place on the economy.
It is thus disheartening, if not surprising, that many Democrats in the Senate now want to eliminate most of the tax law that facilitates the transition of business people to government. This law permits appointees to an administration to defer their capital gains on the stock they must sell to avoid conflict of interest. It thus encourages wealthy individuals to take government posts, because otherwise they would face an unpalatable choice: Pay a huge capital gains bill or hold on to stock that would create conflicts of interest in their new positions. The legislation greatly aids in eliminating conflicts of interest, because in exchange for the tax deferral, appointees must put their money in treasuries or index funds.
Thus, it is not an interest in good government, but in insular government that is behind the push to change this law.
Kimberly Strassel has written a timely, bold, and important book explaining why a great many people are supporting Donald Trump for President. You wouldn’t know it from the book’s title, however, because the title — The Intimidation Game: How the Left Is Silencing Free Speech — reflects Ms. Strassel’s mission, which is to reveal the full extent of the threat to free speech and small d democracy brought on by the coordinated efforts of the political left since 2010 to silence conservative opposition.
Situated at the corner of Fairfax and Wilshire in Los Angeles, the iconic Johnie’s Coffee Shop was where Mr. Pink plotted a diamond heist in Reservoir Dogs and where Walter offered to obtain The Dude a toe in The Big Lebowski. But it has never witnessed malfeasance like the villainy that has unfolded there over the last few weeks. Johnie’s has been converted into a hub of unregulated advocacy for Bernie Sanders’ presidential campaign.
Campaign finance reformers worry a lot about the influence of money in politics. But big money was not decisive this season. Jeb Bush had over $100 million in his campaign chest and associated Super PAC but went nowhere, at a cost of over $500 per voter. Ben Carson was well-funded and flopped. Over in the Democratic primary race, the less flush candidate came near to pulling off an upset against a powerful legacy candidate.
But even more importantly, this campaign season shows that celebrity can count for more than money. Donald Trump may be a billionaire, but he spent very little money up to this point compared to the other major candidates. What fueled his candidacy was celebrity. He had one of the most ubiquitous names in real estate for decades and one of the most watched reality shows on American television.
He was able to leverage that celebrity to secure vastly more free media exposure than any other candidate. With a savvy born of years in the New York media market, he knew exactly how to spin the Fourth Estate. The media was more than happy to return the favor. Trump makes great copy. And not only that, at least some in the largely liberal press corps were happy to see him split the Republican Party.
The more abstract point is that restricting money in campaigns, far from being a safeguard, increases the political power of celebrity.
The Roberts Court’s decisions on campaign finance are its most important, because campaign regulation shapes the elections that affect all policy outcomes. No issue has generated more unyielding divisions on the Court. A fault line generally divides the principles of one set of the Justices—Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito—from those generally in dissent—Justices Ginsburg, Breyer, Sotomayor, and Kagan currently (and Souter and Stevens when they were on the Court).
I have a new paper that explains the division of the justices. The majority believes that campaign finance regulations should be analyzed under free speech principles established in other contexts. The latter generally seeks to decide campaign finance regulation issues by considerations unique to campaign finance regulation.
This doctrinal disagreement plays out at a variety of levels. The Citizens United majority protected corporations in the context of campaign finance regulation as the Supreme Court has in other areas of the First Amendment. The dissenters would not have. That majority rejected as interests asserted for the regulation, like concerns over distortion or equality, when they were rejected elsewhere in First Amendment jurisprudence. The dissenters would have accepted such interests as justifications. The Justices also disagreed on the doctrinal tests to be applied to assess the bona fides of campaign finance regulation. The Citizens United and McCutcheon majorities applied traditionally stringent tests for justifying intrusion on First Amendment interests. The dissenters would have given deference to the legislature.
Finally, the majority and the dissenters persistently disagreed on the structure of the First Amendment itself.
The year was 1988, the first presidential election in which I was eligible to vote, and the trauma is still nearly too much to recount. The duo, brothers, arrived at my dormitory room at the University of Texas, hauled me from the intensity of my studies and dragged me to a polling place, where one wrenched my left arm behind my back and the other bodily placed the right on the voting machine and, depressing the lever, made my choice. As they released me into the chill and black of a November night, I demanded their names. “Koch,” they replied, their snarls announcing they made no apologies and felt no remorse.