Polarization Part III

June 30, 2014

Editors: This is the third and last in a series on political polarization. For immediate release (674 words).

By Stephen M. King, Ph.D.

Do the recent Supreme Court decisions in Citizens’ United and McCutcheon, both regarding campaign-finance reform, contribute to political polarization? Or do they enhance the opportunity for greater political speech and thus encourage greater civic engagement?

Citizens United was, and still is, a highly controversial decision put forth by the Court in June 2010. Essentially, the Court ruled unconstitutional portions of the McCain-Feingold law that prevented corporations (and in effect labor unions, too) from spending money to broadcast what is termed “electioneering communications.”

McCain-Feingold, also known as the Bi-Partisan Campaign Reform Act of 2002, placed restrictions on when and how corporations could spend money advocating for the election or defeat of a candidate, requiring full disclosure of donors.

With minimal exceptions, the Court ruled that corporations and unions have the First Amendment right to free speech just as any person does, and this right includes the ability to spend unlimited funds.

In McCutcheon (2014), the Court ruled that all “aggregate limits” related to campaign-finance spending and contributions were unconstitutional, thus allowing individuals to contribute as much as they want to candidates for federal office, political parties and even political-action committees, or PACS.

In the majority opinion, Chief Justice John Roberts argued that “there is no right more basic . . . than the right to participate in electing our political leaders.” This includes, the majority said, making campaign contributions. Only quid pro quo corruption, e.g., bribery, can be legislated against. Giving money in order to “gain access to” or “influence” elected officials does not constitute corruption.

Dissent in both cases was strong. Justice Breyer in McCutcheon stated unequivocally that the decision “eviscerates our nation’s campaign-finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy . . .” The ability to give unlimited amount of money, he contended, isolates the vast majority of Americans from participating in the American democratic process.

What do these cases on campaign finance portend for the future of American democracy, specifically the politically divisive culture in which we currently live?

The Founders knew that changes and challenges would and should come to the constitutional framework they laid forth. Nothing, it seems, is — or perhaps, should be — sacrosanct in the vulnerable world of democratic experimentation.

So, when it comes to campaign-finance reform, polarization does not have to be the norm. Grassroots attempts at challenging the status quo are under way. States such as Maine, Arizona, Oregon, North Carolina, New Mexico and Delaware are part of a coalition of states and localities that sponsor more dramatic changes to the post-Citizens United campaign-finance world in which we now live.

By promoting full public financing, complete disclosure, matching grants and fixed subsidies, these and other states engage in “clean elections” or “clean financing.”

Indiana, supported by organizations such as the National Conference of State Legislatures and nonprofit groups such as the Brennan Center for Justice, is among those states continuing to experiment with a variety of ways to reduce what it considers to be the negative effects of large and largely unregulated amounts of private dollars into state and federal campaigns and elections. Efforts are even under way to propose constitutional amendments to repeal Citizens’ United.

This kind of political action doesn’t sound like either political inactivity or polarization to me. Rather, it sounds like individuals, interest groups and organizations actively and energetically pursuing challenges and options to campaign-finance reform.

Polarization of ideas is one thing; polarization of action is quite another. Where Congress cannot act, state legislatures, governors, citizens, groups and organizations can and should act.

Tip O’Neill once remarked that “all politics is local.” He was right. He could have gone one step further: All politics that engages and enlightens the public is local and productive.

Stephen M. King, Ph.D., an adjunct scholar of the Indiana Policy Review Foundation, holds the R. Philip Loy Endowed Chair of Political Science at Taylor University.

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