The Constitutional Woes of American Democracy

by Roger Cohen, Autokthonous, 2/10/14

Of all the myriad public-policy problem facing the country, there is probably broad consensus that the very worst of them is the corruption of our elections and officeholders by the ceaseless orgy of political fundraising and contributions.

The 1974 reforms enacted by Congress in the shadow of Watergate only served to prove conclusively the law of unintended consequences that result when trying to separate thirsty politicians from their supply of mother’s milk.

And the horrible irony of the mess is that it is a direct outgrowth of our most cherished and fundamental constitutional principle: the freedom of speech — or at least as it is understood by the constitutional interpreters who sit on the Supreme Court.

Since the High Court’s five-to-four decision in 2010 in Citizens United v FEC, ending the ban on corporate independent political expenditures, political spending has exploded, turning what had already become a permanent campaign into a full-time fever of nearly election-eve frenzy.

Political communication now is as much driven by Super-PACs and a new structure called “Hybrid PACs” (combining traditional Political Action Committee direct support to candidates with the independence of Super-PACS, all under one roof), and untraceable “Dark Money,” that the politicians themselves — always so eager to collect — find they’ve lost control of the process.

The effect of so much independent cash flooding the marketplace of debate, said Philadelphia elections law attorney Adam C. Bonin, has been “to destabilize the parties as a mediating influence and to shift the center of gravity to outside the party structure.”

Bonin, at a presentation last weekend in Hershey, Pa. on campaign finance post-Citizens United, said he foresees even greater disruption ahead. The 2010 decision of the DC Circuit in SpeechNow.org v FEC “takes Citizens United to its extreme,” Bonin said, holding that “if [under Citizens United] it’s not corrupting for one corporation to do independent expenditures, it can’t be corrupting for a lot of them to join together to do it.”

Currently only binding in the District of Columbia, SpeechNow portends an environment where independent political spending enlarges to a scale approaching the economy of medium-sized countries like Chile or Malaysia.

“The next earthquake,” Bonin said, is likely to be McCutcheon v FEC, now awaiting Supreme Court decision, which challenges aggregate limits on individual contributions to political parties and candidates for office….

continue reading at Autokthonous

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