Chapter 3

Stupidity, Inequality, and Corruption

Three Good Reasons to Limit Paid Speech

The collective IQ of Congress goes down every two years.

—Chuck Todd

Imagine if you tried to make a difficult decision using only 4 percent of your brain capacity. You’d probably do some stupid things. Maybe you’d take up smoking cigarettes in an effort to improve your health. There was a myth for decades that we human beings actually use only 10 percent of our brains, but scientists have debunked that. A healthy person uses 100 percent of her brain—and even then we still make mistakes.⁵⁶

Now imagine a society that only makes use of the collective wisdom of 4 percent of its citizens. Would that society make smart public policy decisions? That’s what the Supreme Court has done by letting big money talk louder than the rest of us.

Roughly 4 percent of Americans contribute to a political campaign in any presidential year, but even that statistic grossly overstates participation. Most of the money comes from only the 0.2 to 0.4 percent of Americans who make a contribution of $200 or more to a federal candidate in each two-year election cycle, and this percentage has been shrinking over time.⁵⁷ If these are the only voices voters hear, we are missing out on the collective wisdom of 99.6 percent of Americans. That’s a lot of speech that we aren’t hearing.

We established in chapter 1 that there are limits to how much, how loudly, and in what locations we can speak with our voices, but also that these limits need to be justified by a very good reason. The limits need to balance free speech with other constitutional rights or principles of self-government. In chapter 2, I clarified that spending money to promote speech is different than speaking freely or publishing your thoughts for others to purchase. But chapter 2 also established that limits on spending money for political advertisements need to be justified by a good reason. In this chapter, we will explore three of those reasons: wisdom, which the Supreme Court hasn’t thought about; equality, which the Court has rejected; and preventing corruption, which the Court has used disingenuously.

Reason #1: The Wisdom of the Crowd

The first good reason to limit money spent on political speech is to make wiser public policy choices. Political commentator Chuck Todd has said that the collective intelligence of Congress goes down every two years because smart people are deterred from running for office in the first place, in part due to the increasing role of big money in politics.⁵⁸ But the problem isn’t just money impairing the collective wisdom of the 535 people we assemble in Congress to make decisions on our behalf. It’s also the lost wisdom of the crowd that occurs when 82 million voters in the 2014 elections heard primarily from 124,522 donors who gave $2,600 or more to congressional candidates⁵⁹ when trying to set our national priorities through our elections process. If, as the old saying goes, two minds are better than one, surely hearing from 99.6 percent of voters is better than hearing only the opinions of 0.4 percent.

Academics who study information and knowledge development have noted that “in some cases, groups are remarkably intelligent and are often smarter than the smartest people in them.”⁶⁰ Importantly, “the three conditions for a group to be intelligent are diversity, independence, and decentralization. The best decisions are a product of disagreement and contest. Too much communication can make the group as a whole less intelligent.”⁶¹ Finally, they note that unless you limit the loudmouths, “groups may end up turning into mobs when diversity and independence are missing from the group.”⁶² (emphasis added)

When only 0.4 percent of the people are doing most of the talking, we are missing a great deal of diversity of thought. When elected officials listen primarily to those 0.4 percent who give the majority of campaign funds, their independence is severely compromised. Instead of a wise crowd, a foolish mob controls our government.

When More Isn’t Better

Kansas senator Pat Roberts concludes that we need more money spent on campaigns by comparing those expenses to grocery items. “We spent more on yogurt in this year than we spent on political discourse, discussing the great issues of the day. … How much speech is enough? I submit we need more political speech, not less.”⁶³

But we are hungry for yogurt, not for attack ads. When voters are already saturated with information from 0.4 percent of Americans and lacking information from the other 99.6 percent, does it really make sense to allow those 0.4 percent to spend even more?

The ACLU has spent four decades telling legislators not to limit campaign spending. When legislators do enact limits, the ACLU asks judges to throw them out. The ACLU claims the solution to big money in politics is to add even more money to offset it.⁶⁴ It might sometimes make sense to fight fire with fire, as when firefighters set a small backfire to block the path of a raging forest fire. But the ACLU’s position is akin to throwing a bucket of gasoline on your burning house instead of a bucket of water.

Rain is good during a drought, but in the middle of a flood more water is not what you need. And, make no mistake, the Supreme Court has opened the floodgates to big money campaign ads.

Likewise, if we can hold only so much information in our brains, does it make sense to saturate ourselves with a deluge of information from only a few perspectives? Or should we limit the amount any one person or group of people spends so that our brains can absorb a greater diversity of opinion?

Big money advertising doesn’t only displace ideas and speech that voters seek out (the actual free speech that we should protect); the biggest money even displaces other ads. In hotly contested elections, TV and radio stations routinely run out of advertising space to sell to campaigns—so even those few with money can’t buy speech. Ad space on websites targeting Republican voters in New Hampshire sold out eight months before the 2016 New Hampshire primary—before some candidates had even announced their campaigns.⁶⁵ At these levels of saturation, more speech is not even possible, let alone better.

It’s the Money, Stupid: Public Policy and Tobacco

As an example of money in politics making us less wise, let’s look at tobacco policy. For most of the twentieth century, tobacco use was the leading preventable cause of death in the United States. Even today, smoking-related health problems cost us $50 to $73 billion per year as a country.⁶⁶ Yet it took decades before we took serious steps to address this public health and economic disaster.

Early on, tobacco companies actually marketed cigarettes as beneficial to your health, for instance by suggesting they helped prevent obesity.⁶⁷ Then, from 1954 to 1999, the companies denied that cigarettes caused lung cancer, despite internal memos proving that tobacco executives knew otherwise.⁶⁸

They flat-out lied through their teeth.

If Americans had access to a diversity of views, without the tobacco companies’ money overwhelming the debate, public opinion and public policy would have moved quickly. But because information and speech was heavily unbalanced, we dithered—and millions died.

As our federal government gridlocked, many local officials who did not receive tobacco campaign contributions adopted bans on smoking in public places, and states enacted taxes on tobacco to fund prevention programs. Other policies restricted access by teens to tobacco and limited tobacco advertising and promotion—you could say we limited tobacco companies’ speech promoting their products while we provided other speech to educate consumers about tobacco’s negative health consequences.

These public policies decreased cigarette smoking by 33 percent from 2000 to 2011 while still preserving an individual’s choice about whether to smoke and maintaining access to information about its pros and cons.⁶⁹

Why did it take so long? Why were we so collectively stupid? Because big money from tobacco companies in the form of campaign contributions, lobbying, public relations, and funding of front groups and charities kept us from making wise decisions.

From 1986 to 1995, thirteen tobacco companies gave $9.9 million to federal candidates through their political committees.⁷⁰ These campaign contributions meant voters heard more from politicians who received those funds—even though the campaign ads rarely, if ever, discussed tobacco policy. In 1995, the 124 US representatives who opposed teen tobacco regulations received sixty-nine times more in campaign funds from tobacco interests than the 86 representatives who supported the regulations.⁷¹

Once elected, legislators heard from tobacco company lobbyists more than they heard from public health advocates who did not have campaign funds to buy access.

Campaign contributions also ensured that regulatory agencies heard from legislative recipients of tobacco money. For instance, three US senators who had received substantial campaign donations from tobacco companies sent a letter to the US Department of Health and Human Services that was copied almost word for word from a tobacco company memo faxed to the senators.⁷²

In short, big money distorted who spoke, for how long, and how loudly. The skewed public dialogue led to skewed public policy that endangered people’s health. It’s no surprise that increased campaign money from the tobacco industry correlated with legislators taking weaker stands on tobacco control, according to a statistical analysis in six states.⁷³

To Label, or Not to Label—That Is the Question

It is now accepted that cigarette smoking causes cancer, that tobacco companies knew this, and that they used their financial advantages to overpower the speech of opposing viewpoints that were pointing out the threats of tobacco to our health. But for issues we face today, we don’t yet have the advantage of hindsight to know what ultimately will be viewed as the wise choice. The best we can do is ensure a balanced and fair debate.

Take the issue of using plants and animals in our food supply that have had their genes artificially manipulated. Some people believe this is wise because genetically modified organisms (GMOs) can produce more food per acre, resist disease and drought, and have greater nutritional value. Other people think it is unwise, at least until each GMO has been thoroughly tested to determine adverse effects on human health and on the greater ecosystem. Beyond any evidence, there is also an ethical question of whether humans should alter nature to such an extent.

One idea is to require GMO foods to be labeled so that consumers can choose whether they want to buy them. There are business interests on both sides, namely farmers who produce GMO-free food and those who grow food that has been modified. There are also public health, consumer, and environmental arguments on both sides.

But those two sides are not being equally presented.

A 2014 ballot initiative in Oregon to require labeling of GMO foods saw $10 million spent on the yes side but $20 million on the no side. The measure failed by fewer than a thousand votes. Prior to the onslaught of advertising in the campaign, the idea was polling at 77 percent support among Oregonians.⁷⁴

Similar measures were defeated in California and Washington in 2012 and 2013 by nearly the same 51–49 margin. In Washington, the yes side spent $8 million and the no side spent $22 million—nearly three times as much. In California, the no side spent $47 million, outspending the yes side’s $8.7 million by more than five to one. The results suggest industry campaign consultants use precise polling to know just how much they must spend to defeat a measure. A year after the 2013 defeat in Washington, support for the idea was back up to 69 percent. Once the advertising stopped, public opinion reverted to where it had been.

Regardless of whether you think GMO foods should be labeled, can any of us be confident that the “wise” public policy outcome was achieved in any of these three ballot measures when the political speech was so imbalanced? If each side had spent the same amount of money, or if each individual donor had only been allowed to contribute a maximum amount, would the results have been different? Should public policy be determined by money or by fair debate?

The wisdom of the crowd, our very ability to govern ourselves smartly, has been compromised by a flood of big money unleashed by foolish decisions from the Supreme Court. Reducing our collective stupidity is a very good reason to limit the amounts of money that wealthy donors spend drowning out the diversity of voices in America.

Reason #2: Reducing Political Inequality

The wealthiest 0.1 percent of Americans now control a greater portion of our nation’s wealth than at any time since the Great Depression. This growing concentration of wealth in the hands of the few threatens both our economy and our democracy.

Nine times out of ten, the candidate for Congress who raises the most money wins the election. Knowing this, candidates spend their time talking to rich people and asking them for big chunks of money, leaving little time to talk to average people who might only be able to give $25 or $50. In the 2010 election cycle, 26,783 people donated more than $10,000—the total amount these individuals donated represented one-fourth of all the funds raised by candidates, parties, and political committees.⁷⁵ Over half of these donors were tied to corporations, and 15 percent were either lobbyists or lawyers.⁷⁶ These donors live primarily on the coasts or in such major cities as Chicago and Dallas, yet they give primarily to candidates outside the districts they live in.

In the 2014 campaign cycle, the top one hundred donors contributed nearly as much as an estimated 4.75 million people who gave $200 or less to a federal candidate.⁷⁷ So, each of those plutocrats had nearly five thousand times as much influence as the average small donor.

The Rich Are Different

This sort of political inequality creates at least two major problems.

First, candidates who are most successful at raising money from wealthy people and interests are the ones most likely to win. This reality skews the pool of candidates who choose to run for office in the first place,⁷⁸ since not everyone interested in politics is willing or able to play the money game. Moreover, even if the donors had absolutely no influence on the opinions of candidates they support, we wind up with a Congress that is more likely to reflect the views of the wealthy than of ordinary Americans because candidates with views the wealthy approve of will win.

If wealthy Americans had the same viewpoints as average Americans, their supersized influence would not distort our public dialogue or our elections. But wealthy Americans do not have the same viewpoints as ordinary folks. The day-to-day experiences of wealthy people are dramatically different from most people. One study found that wealthy people worried far more about federal budget deficits than average people, who were more concerned about unemployment.⁷⁹ While a majority of Americans favored increasing taxes on millionaires as a way to reduce the deficit, wealthy survey respondents, not surprisingly, didn’t think that was such a good idea.⁸⁰

The second problem comes from candidates having hundreds of conversations with wealthy people in the process of asking them for money. These conversations do have an influence on the opinions and priorities of the candidates and those who then get elected. That is, after all, the whole point. When Charles Keating, the CEO of the Lincoln Savings and Loan Association at the heart of the 1980s S&L crisis, was asked if his political contributions had worked to influence legislators to take up his cause, he replied, “I want to say in the most forceful way I can: I certainly hope so.”⁸¹

It cost US taxpayers $3 billion to bail out the savings and loan industry after reckless behavior by Keating and others, which was only allowed due to loosened regulations.⁸² It cost Keating only a few pennies on the dollar in campaign contributions to buy the influence he needed to keep his fraudulent banking practices going. One regulator described a meeting with the so-called Keating Five, a group of US senators that Keating had plied with $1.3 million in campaign contributions, as “tantamount to an attempt to subvert the regulatory process.”⁸³

Donors know when they speak with a candidate, either directly or through a hired lobbyist, that speech is persuasive. It may not always convince the candidate toward the donor’s point of view, but it is more beneficial to the donor to have the conversation than to not. Their donation buys access and influence with elected officials, which is why they write the check. Money talks.

When a tiny group of wealthy people have dramatically more influence over who runs for office, who wins elections, what issues candidates campaign on, what issues they discuss privately with donors and regulators, and how they officially act upon those issues while in office, we have lost the core principle in a democracy of one person, one vote.

Majority Rule or Oligarchy?

The American Revolution was fought to abandon the rule of monarchy and the outworn concept of the divine right of kings. The Declaration of Independence eloquently established that the sole justification for a democratic government’s authority is that it rules by consent of the governed. This doesn’t mean everyone agrees with every law, but a majority of citizens should.

For a governing majority to be legitimate, it must be a majority of citizens who each have an equal say.

An oligarchy does not operate by majority rule. Rather, an elite group rules by force, manipulation, or deceit. Although modern Russia goes through the motions of conducting elections, the centralized control of the media, business, and political party apparatus in the hands of a small elite has led many to conclude that Russia is an oligarchy, not a democracy.

“For a governing majority to be legitimate, it must be a majority of citizens who each have an equal say.”

So elections, on their own, do not guarantee a democratic republic.

But what about the United States? Are we really a democratic republic that derives its authority from majority consent of the governed?

As far back as 1994, three-quarters of survey respondents agreed that “our present system of government is democratic in name only.”⁸⁴ Perceptions aside, the problem has been getting worse over time as measured statistically. Using statistical analysis comparing the votes of legislators with the wishes of both constituents and extremely wealthy people, a researcher from Princeton found that economic elites and business interests have “substantial” impact on government policy in the United States while average citizens have “essentially no impact.”⁸⁵ Similar academic research has found that Congress followed the wishes of the majority of Americans 40 percent of the time in 2000, which was down from about two-thirds of the time in 1980.⁸⁶

We are conducting elections, but not under conditions that allow for a diversity of viewpoints and opposition to be heard. In other words, the United States now more closely resembles an oligarchy, where the wealthy minority rules, than a representative democracy of one person, one vote.

Reason #3: Reducing Corruption

A third reason to limit money in politics, and the only reason that the Supreme Court acknowledges, is to prevent corruption. The trouble is, the word “corruption” means different things to different people.

When we say that a computer file has been corrupted, we mean that it no longer contains its true content. The integrity of the information in the file or program has been distorted and it needs to be restored to its original form in order to function properly.

If Americans observed an election where ballot boxes were stuffed with multiple fake ballots or candidates from opposition political parties were jailed to prevent them from speaking out, we would consider those elections corrupt and lacking legitimacy. The true intent of the electorate would not be accurately expressed through such a corrupt voting system.

The Merriam-Webster Dictionary offers four definitions of corruption:

1. impairment of integrity, virtue, or moral principle: depravity

2. decay, decomposition

3. inducement to wrong by improper or unlawful means (as bribery)

4. a departure from the original or from what is pure or correct⁸⁷

For five members of the Roberts Court, corruption means only the third definition: explicit bribery. If somebody offers a government official money on the condition that the official takes some action in return, that is one type of corruption. The legal world calls this “quid pro quo” corruption, using fancy Latin words meaning “something for something.”⁸⁸

Some legislators want campaign funds so badly that they are willing to essentially sell votes and favors to donors with vested interests in order to secure them. Because of the very real chance of succeeding with this bribery form of corruption, the Supreme Court agrees we can limit the amount of money given directly to a candidate.

A Narrow Definition Makes for a Thin Veil

The first flaw with the Roberts Court’s extremely narrow definition of corruption is that it mistakes quid pro quo agreements as the principle culprit when in fact the problem is unequal influence.⁸⁹

There may be nothing wrong with quid pro quo behavior if no money changes hands—indeed Americans fully expect politicians to make explicit agreements with us all the time. They are called campaign promises. We agree to vote for a candidate who promises not to raise our taxes, or to end a war, or to create jobs. This is what allows voters to hold legislators accountable when they violate a campaign promise. However, everyone can barter their vote for a campaign promise, but only a few can write a thousand dollar check. It is the unequal chance to swap money for votes that corrupts politics, not the fact that there is an exchange.

Further, limiting the size of a contribution does not prohibit all quid pro quo behavior. Big donations could come with no strings attached simply because the donor agrees with the publicly stated positions of the candidate. Conversely, donors can and do receive small favors in exchange for smaller contributions. One common perk is for an elected official to take a picture with a donor in exchange for a specific campaign donation. The donor then hangs the photo on his office wall and signals prospective business partners that he has political access and legitimacy. But if you can bundle lots of thousand dollar checks for a candidate, you can bargain for a lot more than just a photo.

Legislators can provide favors without an explicit agreement, often in ways that are impossible for the public to detect. Senator William Proxmire observed, “The payoff may be as obvious and overt as a floor vote in favor of the contributor’s desired tax loophole or appropriation. Or it may be subtle … a floor speech not delivered … a bill pigeonholed in subcommittee … an amendment not offered … Or the payoff can come in a private conversation with four or five key colleagues in the privacy of the cloakroom.”⁹⁰

Another flaw in defining corruption only as explicit deal making is that it leads to a system of “wink and nod” influence peddling. Here’s how Alan Robbins, a California legislator who served two years in prison for political corruption, described it:

What goes on … in Sacramento is that the … lobbyist comes in and on Monday he talks to you about how he’s arranging for a campaign contribution to come from his client, and on Tuesday he comes back and asks you to vote on a piece of legislation for that same client. It doesn’t take very long before the least-bright legislator figures out that if he keeps ignoring the Tuesday request then the lobbyist is going to stop coming to his fund-raisers. And, especially when you talk about a lobbyist who controls over $1 million a year of campaign money, who can make or break one’s career, it’s very easy for legislators to come to the conclusion that his arguments are persuasive.⁹¹

Chief Justice John Roberts and the four others who joined in the Citizens United decision (the “Roberts Five”) have made a mockery of even their own narrow definition of corruption by claiming it is absolutely impossible to corrupt a legislator with a huge contribution to a political campaign that somebody else runs for the candidate’s benefit. For instance, the Citizens United ruling implies it could be corrupting for Florida ophthalmologist Salomon Melgen to give $2,701 directly to Senator Bob Menendez’s campaign, but not corrupting for Melgen’s company to give $600,000 to a super PAC campaign fund to spend on Menendez’s reelection.

It’s unclear that anybody beyond those five members of the Roberts Court actually believes this to be true,⁹² and you have to wonder if even they believe we can’t see through the thin veil they are using to cover legalized bribery. They came to this conclusion without a shred of evidence. As chapter 4 will discuss, this constricted definition of corruption is what led to the creation of the so-called super PACs in the 2012 election cycle, which accepted unlimited campaign contributions and rendered the previous contribution limits meaningless.

A final flaw in the Roberts Five bribery definition of corruption is that it focuses only on a legislator’s actions and decisions, not on the need for voters to make informed decisions based on having access to balanced and diverse viewpoints. The “corruption only as bribery” perspective adopts an elitist view of government. Elitists presume the legislator’s job is to act as an expert to solve difficult problems regular voters are too stupid to figure out. A more populist view presumes that the elected official’s job is to represent the collective wisdom of her constituents, who are, after all, the ones in charge.

This popular view of representation actually depends upon a quid pro quo type of agreement where the elected official agrees to do what her constituents tell her to do. When you think about representation this way, big money campaign ads only serve to distort the wisdom of the crowd and corrupt the political process regardless of whether the money passes through a candidate’s hands.

Three Ways of Saying the Same Thing

In this chapter, I have listed three perfectly good reasons to limit paid speech—protecting the wisdom of the crowd, reducing inequality, and combating corruption—but arguably they are all the same thing. Our public policy-making process is corrupted because big money gives unequal influence to a tiny group of people who distort the wisdom of the crowd and the wisdom of elected officials that would otherwise be achieved if everyone had an equal chance to be heard. When money talks, democracy suffers.

Any one of these approaches to looking at the problem justifies limits on the amount of money any one person or group spends on political campaigns or advertisements. These reasons also can guide courts in determining what sorts of laws are contrary to our First Amendment, namely those laws that give a tiny and unrepresentative group of people unequal and undue influence. Our courts should be questioning the constitutionality of our current system of unlimited campaign spending, not striking down every effort to level the playing field and ensure a diversity of opinions.

What you can do: Send ’em speech

When the ACLU, or any politician, sends you a letter asking for your money, send them back some speech instead. Simply write your opinion about their stance on Citizens United and mail it back in the return envelope they conveniently provide.