|Party Machines Hated Proportional Representation (PR) |
Image from Kathleen Barber's Book
Lawrence Lessig is trying to raise $1 million through crowdsourcing to run for president on a democratic reform platform. As of today, his effort is halfway towards the goal. One leg of his proposal is proportional representation for the US House based on FairVote’s latest plan. I have written in the previous post about how this system would work. This article is about the history of Ranked Choice Voting.
Ranked Choice Voting is not a new idea. It is constitutionally protected and has a long history in our nation. It has been more of a forgotten idea. But this is changing. The reform is reemerging as an alternative to the two round voting used in non-partisan municipal elections. It can also work with partisan elections where the results can mirror the primary / general election dynamic. Here is a very brief account of the history of Ranked Choice Voting. Most of the historical information in the article was taken from Kathleen L. Barber’s books - Proportional Representation & Electoral Reform in Ohio. &, A Right To Representation.
In the mid 19th century, the Industrial Revolution was transforming society in developed nations. Accordingly, the franchise of democracy was affected. There was a fear among elites that the growing middle class would, as a majority of voters, displace the establishment in government. In the early 1860's, the influential English thinker and member of Parliament John Stuart Mill found a way to accommodate majority rule while still give the minority a voice. He came across English barrister Thomas Hare’s pamphlet "On The Election Of Representatives, Parliamentary and Municipal."
In his treatise, Hare was advocating the Single Transferable Vote (STV). We call this Ranked Choice Voting today in our nation. STV also is referred to as Preferential Voting and Hare / Clark Method. The system can be called Instant Runoff Voting when used in single-seat elections and Choice Voting (PR/STV) when used with multi-seat proportional representation.
Australia and Ireland were early converts to the system and still use it to this day with national elections. In fact, Kathleen Barber says there is no tradition of party-list proportional representation in English speaking countries.
In the post Civil War United States, the enfranchisement of black males and an influx of European immigrants threatened the balance of power. Again, the establishment was worried about class issues and the impact on suffrage.
Barber says the South Carolina legislature considered RCV to protect the interests of white minorities during Reconstruction. They settled instead on using the semi-proportional Cumulative Voting. After the military left the state, plurality voting came back. The simple barriers of literacy tests, poll taxes, intimidation and violence became the way to simply keep blacks out of power.
Between 1870 and 1900 more than 11 million European immigrants came to the US. Most of them settled in the cities of the Northeast and Midwest. Political parties met the needs of the new immigrants thus cultivating loyalty. These loyal voters were the base of powerful political machines that dominated the "wards"—which are single member political districts with winner-take-all voting rules.
As a reaction to the rule of the party bosses, there were attempts to reform elections and break up the ward system. In 1872, majority Republicans in the New York legislature passed a bill mandating Cumulative Voting, a form of semi-proportional representation, for New York City. The Democratic governor vetoed this system which would done away with single-seat wards—and instead also give a minority of voters an opportunity to elect a candidate of choice.
Between 1890 and 1920, many progressive voting reforms were put into practice. Women's suffrage, direct election of US Senators, open primaries, ballot initiative and referendum, home-rule municipal charters and non-partisan elections are still with us today. RCV was among these reforms adopted at the time.
RCV took hold in New York City along with cities in Ohio, Massachusetts and other places. Oregonians amended their state constitution to explicitly accommodate it—and this language exists to this day.
The system did what it was supposed to do—give voters more choices by the ability of ranking candidates. Voters were no longer stuck in a ward or district dominated by one party and could choose women, independents or racial minorities without splitting a constituency at the polls. The key is to have multiple seats up for election with the ballot results allocated proportional to the votes cast.
Mill and Hare envisioned the promise of minority representation, but in a sense of protecting gentry from the masses. With RCV in the US, minority representation came true but in a way that helped folks who were usually excluded from democratic institutions. In fact, the federal Voting Rights Act has used forms of Fair Voting (proportional representation) to remedy racially polarized and minority voter dilution voting in places where single-member districts are difficult to create. Over 100 jurisdictions in our nation use this kind of voting for inclusive elections.
The Establishment Pushes Back
At first, opponents of RCV went to court with various suits. They claimed it violated the equal protection of the 14th Amendment. But the Courts disagreed and RCV was upheld as legal.
Opponents then mounted repeal efforts. In most places there was a ballot question calling for repealing RCV every time there was an election! Even though voters repeatedly turned the pro-party machine effort down, the same repeal question appeared on the ballot faithfully, year after year.
After World War II, the Cold War and racial issues came into prominence. In some of the cities using RCV, blacks were getting elected and opponents conducted "whisper campaigns" bemoaning racial block voting. In New York, during the height of the Red Scare, of couple of Communist Party members were elected to the city council. Opponents decried RCV as Stalinist and un-American.
It was these charges, unrelenting repeal efforts and voters forgetting why the system was implemented in the fist place that led to successful repeals. By 1960, all cities except for Cambridge MA, had repealed Ranked Choice Voting.
This fall voters in Duluth Minnesota and the whole state of Maine will be considering the reform. These ballot measures have a great chance of winning. RCV is established in California’s Bay Area, the Twin Cities and Portland Maine.
Now that a leading reformer has added this idea to his unique presidential campaign effort, it looks like Ranked Choice Voting's time for national exposure might be coming after all.
Krist Novoselic is current Chair of the FairVote Board of Directors
A version of this was originally published in the Seattle Weekly, June 3, 2008
|Smokescreens to my right and left.|
(This piece was originally posted on Medium
, October 23, 2015.)
I bet you’ve heard the slogan, “Let’s overturn Citizens United!” This is telling people we need a constitutional amendment, or appoint new justices, who will overrule 2010’s Citizens United v. F.E.C
Citizens United has become a symbol, to many, of an exclusive federal government that puts a premium on political contributions. I agree that this is the state of the current United States political situation. However, calling for repealing a 2010 ruling is more of a potent rhetorical tool than a realistic — or even honest — solution to fixing an American democracy out-of-whack.
I have discussed the ruling with people who are emotional about it. Before I tread too deep into a conversation, I always ask the question, “Have you read it?” Most have not. This is understandable. A person with the Open Source Party
recently said this about how people get their political information,
“One of the jobs of a political party is to provide a high return on attention by being a curator of ideas, a distiller of information, a vetter of facts/sources, and by being a bit smarter and faster than the average member who doesn’t have the time, money, or attention to research issues in depth.”
They’re right, however, we don’t have parties as much as we have candidate-based political movements. There are groups within the two major parties in the United States; and one inside the Democratic Party is #FeelTheBern. A cornerstone of Sanders’ campaign is his position on overturning Citizens United. If his rallies are like rock concerts, this line is received like one of his greatest hits.
His website says
, “In a 5–4 decision in the Citizens United case, the Supreme Court opened the floodgates for corporations and the wealthy to spend unlimited and undisclosed money to buy our elected officials.”
The statement regarding “undisclosed money” is simply not true. The 2010 ruling was good for transparency
in elections. To blame the appalling lack of disclosure in federal elections on SCOTUS denies how good the Court has been
on transparency. It also obscures the root of the problem.
The GOP can pass comprehensive disclosure rules tomorrow, however, they jealously clutch current loopholes that create the smokescreens their patrons hide behind. We need to be hitting ruling Republicans on blocking transparency laws. To Sen. Sanders’ credit, he supports legislation such as the Disclose Act, which increases transparency in elections.
Second, while spending limits can sound good, the reality is that they tend to bump up against the right of freedom of speech. The group Citizens United wanted to show a documentary on Pay-Per-View television and federal election law prohibited them from doing so. The laws that Citizens United overturned were passed by Congress before popular media such as YouTube took off.
Citizens United stated the Constitution does not discriminate against certain speakers. I believe a group like a union ought to be able to make a documentary about a candidate’s labor relations — and this statement should be allowed to stream on the internet. The Court was explicit regarding the convergence of traditional television and rapidly unfolding media technology. The ruling also mentioned how blogs and other web-based tools are important for expression.
Within the right of free speech, how is Pay-Per-View television any different from online content delivery? The ruling overturned prohibitions on electioneering during defined periods preceding an election. Citizens United basically knocked down censorship of the internet.
Buying Elected Officials?
Sanders’ campaign is raising tens of millions of dollars. His message is resonating with a lot of people. His crowd-sourced funding is the expression of the needs and values of his supporters. In other words — money is speech! The technological revolution is rapidly changing the political playing field where groups of people can combine their finances as a way to counter the concentration of money by a few individuals. I think this is an exciting development!
In light of this potential, do we really want to limit political information by repealing a court ruling that was good for transparency and internet freedom? And do we want to do this based on incendiary political rhetoric?
Indeed, politicians fanning the flames of discontent might be loath to turn off the tap of a lucrative rhetorical tool. Nevertheless, there are months before any party nominations are conducted. There is time for voters to make informed choices.
Lawrence Lessig has a good plan to break down barriers US House members have built to protect themselves. His plan to end gerrymandering
and widen the franchise of voting is an honest and rational way to fix our broken political system.
Lessig is also right to call Sen. Sanders out on his sensational rhetoric. But with the #FeelTheBern bandwagon rolling, are people willing to listen?
|Photograph of Geronimo, 1887 by Ben Wittick |
Militiamen taking over a federal bird sanctuary in Oregon has me thinking about violent political actions. I have been studying American Indian history and there are similarities with actions some Indians took a generation ago. I hope the situation in Oregon will be resolved peacefully and there is precedent for this in the United States. The following are my thoughts based on an essay by Dean J. Kotlowski
that is in the Roger L. Nichols compilation The American Indian: Past and Present Kotlowski: Alcatraz, Wounded Knee, and Beyond
Social turmoil defined the era of the late 1960’s to mid 1970’s, and the American Indian was not immune to its effects. Society seemed split between an older establishment and a young, impatient, vocal youth. This schism manifested in the Indian community with Navajo leader Peter MacDonald praising US President Richard Nixon on one side, while activists like Russell Means, Dennis Banks and others with the American Indian Movement (AIM) going as far as to stage armed protests. I can understand MacDonald giving praise to Nixon—considering that Termination
was in full swing twenty years previously. Nixon thought Indians were a “safe” minority (p. 358). Nixon calculated that a generous approach to Indians would be good politically for him with younger Americans, yet he conceded that there were real injustices heaped on these people with “very few votes”. While the tribal establishment may have welcomed presidential gestures, the young radicals were itching for a fight.
In 1969, fifty Indians occupied Alcatraz Island, a closed federal facility. This was on the heels of the Kent State shooting and the Nixon Administration was loath to escalate tensions. Instead of a fight, the authorities simply waited the occupiers out. The public eventually lost interest and the Indians fell into squabbling factions where most left the island (p. 359). In 1973, Wounded Knee II found similar tactics on both sides. In the end however, Means and the Indians surrendered their weapons after the government agreed to investigate the corrupt leadership of Richard Wilson on the Pine Ridge reservation. In 1974, Mohawks at Eagle Bay, New York planned to form their own nation, then posted guards around their camp. The government responded to this action in a similar light handed
fashion—to the point where it dragged out for two years until the State of New York offered a settlement. Nevertheless, amidst all this unrest, the United States was still proactive in trying to help Indians.
President Ford continued Nixon’s Indian friendly policies by adding 185,000 acres to the Havasupai Indian Reservation in Arizona. New Mexico Taos Pueblo’s and Washington State Yakima’s also physically expanded their reservations. The Alaska Native Claims Settlement Act
was another case of the federal government giving land back to Indians. Kotlowski says Nixon and Ford were “remarkably enlightened and a tolerant” considering the challenging circumstances radical Indians had created (p. 369).
The social unrest of the period was pervasive, and many Indians were vocal activists—despite that the President had turned the tide of Termination back. It is amazing that any progress was made in light of incendiary statements and actions by AIM and others.
There is precedent for peaceful resolution with armed standoffs with the federal government. I hope this will happen in Oregon.
THE HISTORY OF MODERN CAMPAIGN FINANCE LAWS
By Krist Novoselic
The most notorious Supreme Court ruling of recent times is 2010’s Citizens United v. F.E.C. This ruling has captured many an imagination with the idea that the Court turned somehow turned “corporations into people” or that money was created into speech. This article is not about propagating these useless catchphrases, rather, it is about how independent campaign expenditure prohibitions bump into 1st Amendment protections. I look at the history of attempts to regulate independent campaign expenditures and how, in the process, a state censorship board was created.
On February 5, 1972 President Nixon signed the Federal Election Campaign Act of 1971 (FECA) into law. The New York Times reported that some considered the Act “a revolution in American political finance”[i]. While it may not have materialized any revolution, this legislation, and its progeny certainly have caused much judicial and legislative controversy—casting a shadow that affects us to this day.
FECA arose from the demand for reform after campaign finance abuses of the time. The legislation required detailed disclosure of campaign contributions; set campaign contribution limits to candidates, parties and committees; set expenditure limits on campaigns, independent groups and individuals and created the first public financing of presidential campaigns and national conventions. Under the Act, the Comptroller General of the United States General Accounting Office monitored compliance with FECA. 1972 was an election year, therefore it did not take long for the new law to become embroiled in campaign politics.
A group called "The National Committee for Impeachment," purchased a full two-page advertisement in the May 31, 1972, issue of The New York Times (Times). Under the title of "A Resolution to Impeach Richard M. Nixon as President of the United States" the advertisement was critical of the sitting president’s Vietnam war policies. The group also stated it would, “devote its resources in funds and publicity in aid of any new candidate for election to the House of Representatives” who supported impeachment of Nixon.
The Nixon administration soon after filed a complaint under FECA’s § 301(f), claiming that this two-page advertisement was effectively a campaign expenditure. Nixon alleged the group “attempted to influence the outcome of various Congressional primary and general elections”[ii], along with, "the outcome of the 1972 Presidential and Vice Presidential elections." The United States Department of Justice issued an injunction against the impeachment group, and also let it be known it was considering prosecuting the Times for running the advertisement.
The United States Court of Appeals, Second Circuit decided on October 30, 1972 that “The dampening effect on first amendment rights and the potential for arbitrary administrative action that would result from such a situation would be intolerable.”[iii] In a narrow ruling, the Second Circuit found this single newspaper advertisement failed to establish a close nexus between the impeachment group and a specific candidate. While FECA’s expenditure limits may have survived this challenge, there was still unease over the government’s potential to stifle political speech.
On October 27, 1972 a full page ad ran in the Times with the title “It Took A Court Order To Get This Advertisement Printed”. In fact, the action of obtaining an order is exactly what the ACLU did before it purchased the advertisement. On December 9, 1972, the Times published a letter to the editor from Aryeh Neier, Executive Director of the American Civil Liberties Union (ACLU)[iv]. Mr. Neier was defending the advertisement and was in response to another letter published in the Times a day after the advertisement ran by Phillip S. Hughes, Director of the Office of Federal Elections. Mr. Hughes asserted that such an order was not needed to run the advertisement. Mr. Neier stated that the order was obtained to “vindicate our right not to submit materials we wish to publish for prior review by any government agency.” Mr. Hughes may be correct that such an order was unnecessary, nevertheless, the ACLU obtained the order to make the point that expenditure limitations could potentially stifle free speech.
While the 1972 ruling regarding the impeachment advertisement expressed concerns over “arbitrary administrative action” by the government, nonetheless, FECA became a political weapon used by warring campaigns during elections. Accusations of breaking the rules were flying, however, according the the Federal Election Commission, following the 1972 elections, few of the nearly 7,000 cases referred to the Justice Department and the Comptroller General by congressional officials were litigated[v].
In 1974, after campaign finance abuses in the 1972 presidential election came to light, Congress amended FECA. The result was tighter contribution and spending limits[vi]. In addition, the Federal Election Commission, now an independent body appointed jointly by Congress and the President, was established. Another amendment exempted media companies from falling under independent expenditure prohibitions to “ensure the unfettered right of the newspapers, TV networks, and other media to cover and comment on political-campaigns.”[vii] Other than the media exemption, FECA’s amendments were immediately challenged by presidential candidate Eugene McCarthy, New York US Senator James Buckley, the Libertarian Party, the ACLU and other groups.
On January 30, 1976 the Supreme Court of the United States (SCOTUS) ruled unanimously in Buckley v. Valeo[viii] that, among other issues, the expenditure limits were unconstitutional restraints on speech. The Court rejected arguments defending the law that expenditures were conduct and not speech. Unlike the burning of a draft card—which is determined to be conduct and not speech—the Court said, “some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two.” Even though prior rulings such as the impeachment newspaper advertisement were narrowly construed as outside of the scope of FECA, the law’s expenditure limits were found generally to be "suppressing communication." The Court said,
A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.
Buckley provides the template for today’s campaign finance regime; where contribution limits are acceptable, while independent expenditure proscriptions, imposed on certain groups and individuals, are not. The ruling also protects other aspects of our current campaign financing law. Buckleyupheld FECA’s provisions such as the public financing of campaigns, direct campaign contribution limits and campaign financial disclosure. Buckley invalidated how FEC members were appointed, however, the legislative fix that preserves the separation of power stands to this day in the form of the Federal Election Commission (FEC). The decision also invoked First Amendment free speech rights by establishing that there should be no constraints on self-financingcandidates—for, how can a candidate corrupt themselves?
The Court addressed independent expenditures with issue advertisements“that in express terms advocate the election or defeat of a clearly identified candidate for federal office”. FECA’s $1000 expenditure limit on communications not containing “express words of advocacy [magic words] of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject’” was declared a violation of free speech rights. Independent expenditures are just that, uncoordinated and not connected to a campaign. Therefore, the Court said corruption is seemingly impossible, “The absence of prearrangement and coordination of an expenditure with the candidate or his agent . . . alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” The lack of the “magic words” of express advocacy can move a political message—along with the groups who espouse them—through the walls of direct contribution limits. The resulting ghost-like creature is the Political Action Committee (PAC) resulting in the soft money / hard money dynamic; which defines how and where finances are allocated in today’s elections.
Hard money is a campaign contribution given directly to a candidate’s campaign. Contributions must be made with funds that are subject to the FECA’s disclosure requirements and amount limitations. The current contribution limitation to a candidate is $2,700. Soft money is the funding of an issue advertisement that does not contain express words of advocacy of election or defeat. There are no contribution limits to this kind of communication. The effect of this is hard money limits are avoided with communications that resemble advocacy, however, lacking the express or “magic words”, technically are not coordinated with a campaign. The soft money dynamic is a giant loophole that FECA and its amendments has tried to contain. Despite Buckley’s position on allowing independent campaign expenditures, a state took aim at this loophole. Once again, newspaper advertisements were caught in the First Amendment issues arising from expenditure prohibitions.
Austin v. Michigan Chamber of Commerce (1990) was a challenge to the Michigan Campaign Finance Act. The Court ruled, six to three, that Michigan could prohibit corporations—other than media companies—from using treasury funds with independent expenditures in campaigns[ix]. The Act, however, did still allow corporations to use segregated funds for the purpose of electioneering. The Chamber, from within its treasury funds, wanted to run a political advertisement in a newspaper in favor of a candidate for state office. The group wanted to enjoin the statute as unconstitutional, but SCOTUS overturned an Appeals Court decision and let the Michigan law stand. The majority in SCOTUS said the expenditure limit did not violate the Fourteenth Amendment by singling out certain corporations because, “the State's decision to regulate only corporations is precisely tailored to serve the compelling state interest of eliminating from the political process the corrosive effect of political ‘war chests’ amassed with the aid of the legal advantages given to corporations[x].”
The Chamber cited MassachusettsCitizens for Life—a 1986 SCOTUSruling regarding corporate expenditures[xi]. In this case, a group / corporation opposed to abortion was allowed to electioneer because of its “narrow focus”. TheCitizens for Life were not a business group, rather, they held the sole purpose of expressing a single political opinion. The Chamber, on the other hand, was made up of businesses, who had an economic incentive to be part of this economic advocacy group. The crucial point with upholding the Michigan expenditure limit is the economic advocacy group could be a way for these business interests to circumvent the individual contribution limits of Buckley. The Court frowned on how the Chamber could be a convenient soft-money conduit.
Despite FECA and its amendments, along with various court rulings—campaign finance laws could still not contain spending. For example, during the 1996 presidential election, the Democratic administration of Bill Clinton became embroiled in controversy regarding foreign contributions. As a result, in 2002 the FEC imposed a record-setting $719,000 in fines against the Democratic National Committee, the Clinton-Gore campaign, a group known as The Buddhist Temple and nearly two dozen people and corporations acting as conduits for illegal contributions[xii]. Amidst this scandal, and the fact that the Republican and Democratic parties had each raised and spent $500 million between 1998 and 2000[xiii], Congress was ready to act on campaign finance reform again.
The Bipartisan Campaign Reform Act of 2002 (BCRA), offered a series of amendments to FECA and has been referred to as “the most significant change in federal campaign finance law since the early 1970s[xiv]” As a result of Austin, which upheld expenditure prohibitions—even after Buckley—the BCRA contained limits on campaign spending by corporations and unions. §441b. said, in part, it was, “unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office”. These limits were within a certain timeframe preceding federal primary and general elections. This means electioneering communications, including newspaper ads, were off limits for certain groups during the election season. The BCRA was sued immediately, with Senator Mitch McConnell leading the plaintiffs; which included the ACLU who called the new law, “a double-barreled attack on political freedom in America[xv].”
With this challenge, SCOTUS once again ruled on campaign finance reform laws in 2003. McConnell v. F.E.C[xvi]was a long opinion written by Justice Sandra Day O’Connor and Justice Paul Stevens for the majority. This opinion gives a comprehensive history of campaign finance legislation. They recall the T. Roosevelt administration and the Tillman Act of 1907. They mention other campaign finance legislation such as the Hatch Act passed shortly after World War II. Of course, FECA looms large in McConnell, with the reform spirit of that 1972 legislation setting the tone of this jurisprudence.
The McConnell majority were uneasy about the rigid quid pro quo standard of corruption with campaign financing established in Buckley. This legal term means that there is an exchange for money between the contributor and the office seeker only for the purpose of buying a favor. In essence, the contribution is a bribe. The McConnell majority provide a nuanced view, citing undue influence with campaign contributions[xvii]. They said the quid pro quo standard is too narrow, reasoning that substantial donations gain access or ingratiate high-level government officials; hence the influence. The majority thenlament how soft-money loopholes in the system funnel ever increasing amounts of money, “Of the two major parties total spending, soft money accounted for 5% ($21.6 million) in 1984, 11% ($45 million) in 1988, 16% ($80 million) in 1992, 30% ($272 million) in 1996, and 42% ($498 million) in 2000” [xviii]. Their frustration is that money in elections was ballooning regardless of 30 years of FECA. Considering the incessant growth of money in politics, and concerns over influence it tends to garner in elections, an alarmed SCOTUS majority did not have the heart to overturn the 2002 BCRA expenditure prohibitions.
The McConnell majority said that express advocacy and the loopholes of, “the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad”[xix]. This is the key to their ruling upholding expenditure prohibitions. Advertisers could easily evade express advocacy restrictions. This evasion made attempts at reform “a pile of legal rubble”[xx]. They add the soft-money loophole has “destroyed our campaign finance laws.” Therefore, the BCRA independent expenditure prohibitions close off these soft-money conduits.
The McConnell majority opinion is essentially a lecture on how campaign finance regulation is in the public interest. The opinion reads like the Court throwing up their arms frustrated, urging that something needed to be done. It is like they were saying that if the cost of trying to contain growing campaign spending—and the undue influence it can buy—is at the expense of some First Amendment free speech protections, then so be it. The cost of this decision would soon appear.
The 2004 election was a year into the United States’ Operation Enduring Freedom. This invasion and occupation of Iraq was a reaction to the devastating September 11, 2001 attacks on Washington DC, New York City and in the air in Pennsylvania. Filmmaker Michael Moore released a film critical of the George W. Bush administration’s Iraq war policies. Fahrenheit 911 was reviewed by the Times who said, “it isnot a fair and nuanced picture of the president and his policies”[xxi]. The reviewer also called the film “partisan”. George H.W. Bush, the ex-president and father of the subject of the film called Fahrenheit a “vicious attack” on his son[xxii]. Released in June, the documentary was caught in the middle of presidential election year politics—and BCRA expenditure prohibition periods. The nature of the film was not lost on other partisans and a formal complaint was made to the FEC.
Dale A. Clausnitzer alleged Fahrenheit 9/11constituted an independent expenditure by Mr. Moore’s corporation Dog Eat Dog Films because the film expressly advocated the defeat of President Bush[xxiii]. The FEC disagreed and determined, “the film, associated trailers and website represented bona fide commercial activity, not ‘contributions’ or ‘expenditures’ as defined by the Federal Election Campaign Act”. Mr. Moore’s film was essentially ruled as entertainment by the FEC—even though it was a partisan attack in the middle of an election year. It is very plain Mr. Moore’s production company had a similar partisan intention as the The National Committee for Impeachment did in 1972, however, what was different is how communication technology had progressed significantly in the 40 years since that election season.
Mr. Clausnitzer’s complaint noted that a partisan site, ReDefeatBush.com, provided a link to Michaelmoore.com; a corporate asset of Moore’s production company, which also provides political advocacy[xxiv]. The complaint mentioned a link to MoveOn.com and MoveOn PAC, another Democratic / left-wing advocacy group. In other words, there appeared to be coordination, through new technologies, to target the incumbent president. Like the group seeking Nixon’s impeachment, Moore’s political statement survived electioneering complaints rooted in expenditure prohibitions. This is a victory for free speech, however, the tensions with these expenditure bans and the First Amendment would hardly go away.
In 2008, there was an open seat for the office of president. Former First Lady and United States Senator Hillary Rodham Clinton (NY) was caught in a tough fight for the Democratic party nomination. Long a foe of right-wing partisans, this prominent political figure was a major target. In 2007, a right-wing advocacy group called Citizens United made their own documentary with Sen. Clinton as the subject. Like Moore’s film, Hillary: The Movie (Hillary) is an attack on a candidate for president. Citizens United was prepared to give a pay-per-view cable company $1.2 million to make Hillary available on a channel called “Elections ‘08”[xxv]. This way, the film was available to cable viewers free of charge. The proposal also included airing 30 second advertisements promoting the work. SCOTUS, in their Citizens United v. FEC ruling, called these advertisements “pejorative” towards Sen. Clinton[xxvi].
Citizens United filed a complaint in District Court in December of 2007 requesting that the Court prevent the FEC from enforcing electioneering communications provisions. The group also asked that the disclosure at the end of the advertisements for the film be declared unconstitutional[xxvii]. The Court denied both of these requests and the case was appealed.
On January 21, 2010, SCOTUS issued its ruling with Citizens United v. FEC, on the grounds expenditure prohibitions violated First Amendment protections, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech”[xxviii] The notion of “corporate personhood”—a term not used in the opinion—was referenced. The majority said even though, “state law grants corporations special advantages—such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets. This does not suffice to allow laws prohibiting speech.”[xxix] The Court rejected the undue influence standard found in McConnell as being “unbounded”[xxx] reasoning, “The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt”[xxxi]. The clear quid pro quo standard was therefore restored.
There were conflicting legal precedents regarding expenditures, so the court could choose which course of law to follow. The narrowly tailored public interest cited in Austin was overruled. Citizens United instead cited Buckley; rejecting any government interest “in equalizing the relative ability of individuals and groups to influence the outcome of elections.”[xxxii]
Citizens United did not repeal direct hard-money contribution prohibitions to campaigns from corporations or unions; “For example, the owner of an incorporated mom and pop grocery store is not permitted to use a business account to make [direct] contributions.”[xxxiii] Like Buckley, Citizens Uniteddid not touch the laws on direct contribution limits to campaigns.
The Citizens United majority also identified another way the expenditure prohibition was producing lopsided results. “In the 2004 election cycle, a mere 24 individuals contributed an astounding total of $142 million to [soft-money advocacy groups], yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech.”[xxxiv]
The Court did reject Citizens United’s plea to strike down disclosure laws by adhering to “public interest” reasoning. As in Buckley, the ruling said disclosure of campaign finances pass Constitutional muster to, “insure that the voters are fully informed about the person or group who is speaking”.[xxxv] On the heels of this notorious case, in another opinion, more campaign finance regulations were struck down.
On April 2, 2014, SCOTUS decided McCutcheon v. FEC. With this case, the same Citizens Unitedmajority overturned aggregate contribution limits to campaigns. While the individual limit on hard-money to a candidate still stands at $2,700, the limit of $48,600 in total individual contributions, every two years, among all federal candidates was struck down as an infringement of First Amendment rights. The Court argued that once the aggregate limit was reached, how does that extra contribution above it constitute quid pro quo corruption? Again, the Court stressed, “The hallmark of corruption is the financial quid pro quo: dollars for political favors.”[xxxvi]
The catchphrases of Citizens United“turning corporations into people” or making “money speech” loom large in the minds of many. Their grip on the reactionary psyche is a powerful rhetorical opportunity for politicians, non-profits and others dependent on political fundraising. The BCRA effectively turned the FEC into a state censorship board. As described above, filmmaker Michael Moore’s production company Dog Eat Dog Films had to stand in front of a state agency to get permission to show his documentary during an election season. Same with the group Citizens United.
The best one can do to serve democracy is to understand and study issues. Don’t believe the hype about Citizens United. It was a good ruling that protected the right of people to hear information without the government picking and choosing who could speak.
Correction, the 2003 US invasion of Iraq is "Operation Enduring Freedom" and not "Desert Storm". The article now reads as corrected. (Tip of the hat to pure_mercury for the catch)
[i] Nixon Expected to Sign '71 Campaign Funding Act Tomorrow Ben A. Franklin; ProQuest Historical Newspapers: The New York Times pg. 20, Feb 6, 1972
[ii]Federal Election Campaign Act'Censorship' Aryeh Neier,
New York Times Dec 9, 1972; ProQuest Historical Newspapers: pg. 34
[iii]United States v. National Committee for Impeachment, 469 F.2d 1135 (2d Cir. 1972).
[iv] New York Times Dec 9, 1972; ProQuest Historical Newspapers: pg. 34
United States v. National Committee for Impeachment, 469 F.2d 1135 (2d Cir. 1972).
PUBLIC LAW 93-443-OCT. 15, 1974 https://www.govtrack.us/congress/bills/93/s3044/text
[viii] Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
[ix] Nowak, J.E., Rotunda, R.D., (1991) Constitutional Law Fourth Edition, West Publishing Company p. 1121
[x] Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S. Ct. 1391, 108 L. Ed. 2d 652 (1990) at 1401
[xi] Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S. Ct. 616, 93 L. Ed. 2d 539 (1986)
[xii] 1996 Fund-Raising Scandals Bring Stiff Penalty, Sep 21, 2002, The Washington Post
[xiii] Baran, J. W. (2001). Regulating Money in Politics: We've Got It All under Control. Cumb. L. Rev., 32, 591.
[xiv] Briffault, R, (2002) The Future of Reform: Campaign Finance After the Bipartisan Campaign Reform Act of 2002 Arizona State Law Journal 34 Ariz. St. L.J. 1179
[xvi] McConnell v. Federal Election Comm'n, 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003).
[xxi] Scott, A.O., New York Times , June 23, 2004 http://movies2.nytimes.com/2004/06/23/movies/23FAHR.html
[xxii] Susman G. (2004) Former President Blasts Michael Moore Entertainment Weekly June, 1 http://www.ew.com/article/2004/06/01/former-president-bush-blasts-michael-moore
[xxiii] Federal Election Commission August 9, 2005, http://www.fec.gov/press/press2005/20050809mur.htm
[xxv] Citizens United v. Federal Election Com'n, 130 S. Ct. 876, 558 U.S. 310, 175 L. Ed. 2d 753 (2010)
[xxxvi] McCutcheon v. Federal Election Com'n, 134 S. Ct. 1434, 572 U.S., 188 L. Ed. 2d 468 (2014). P. 3
Seth E. Masket is Associate Professor and Chair of the Department of Political Science at the University of Denver. His new book is The Inevitable Party, a study of the consequences of anti-party laws in the United States.
Starting over 100 years ago, would-be reformers have taken power away from political parties in an attempt to remedy the effects of political machines and the bosses that controlled them. Masket tells us how today the new boss is the same as the old boss—as political insiders are resilient. They adapt to rules intended to disburse power, resulting in “reforms” that weaken democracy by fostering lack of transparency and polarization.
Professor Masket tells us about the “policy demanders”. These are individuals and the groups they form to advocate policies that reflect their needs and values. I think other terms for the policy demander could be; insider, special interest, consultant, partisan, political elite, operative and others. These actors fill the vacuum left by political parties weakened by state policy.
The book offers case studies such as Colorado in 2002. Voters passed constitutional amendment 27—which sharply limited money parties and individuals could give to state legislative candidates. Advocates of the amendment claimed this reform would, “reduce the impact of special interests on the political process and increase the influence of individual citizens” (p. 36). Indeed, political parties were crippled by the amendment’s passage, however, policy demanders skillfully circumvented state campaign finance prohibitions—while at the same time consolidating power for themselves.
A group of liberals known as the “four millionaires” recruited candidates to run as Democrats and used independent expenditures to target critical races for the Colorado legislature. Masket says these policy demanders preferred to call themselves the “Roundtable” (p. 38). The Roundtable worked with traditional Democratic party groups such as labor, environmental advocates and others during the 2004 campaign. The Roundtable spent around $3 million on its efforts, resulting in longtime minority party Democrats winning the majority in both chambers of the Colorado legislature.
The Inevitable Party gets deeper into the situation with mixed-method case study. Masket analyzes voter turnout and compares the amount of money spent in certain races. This study found many donors were giving less to the Colorado Democratic Party, and instead gave to the Roundtable. One of the effects of the money was how Roundtable supported candidates were identified as the favorites early on (p. 56). With ample funding, these favorites deterred others from running for office. In fact, only five out of 84 Democratic primaries in Colorado were contested in 2004.
Primaries are another longstanding feature of our elections that promise to reduce the impact of special interests on the political process and increase the influence of individual citizens. However, this century-old reform seemed to wither in the face of a new campaign finance law placed on top of it. The result was determined policy demanders becoming the new bosses crowning their preferred candidates for the ballot.
Chapters in the book examine other cases in various states. An examination of California’s 2003 gubernatorial recall shows how parties and policy demanders shaped that situation, regardless of California’s anti-party policies; which recall is one of. Masket then looks at another case with how Minnesota did away with its non-partisan legislature after it became politically polarized after WWII. Another chapter tells of how Wisconsin adopted partisan primaries in the first place—it was a fluke of events and passed after policy demanders recognized the benefits—to them—of this anti-party reform.
In another example we learn how Nebraska—with the nation’s only non-partisan legislature—became politically polarized. The scholar’s research suggests the adoption of term limits could be the cause. How so? He says, policy demanders regularly recruit and support candidates who have no institutional memory. These temporary legislators then rely on the people who helped get them elected for guidance.
The title of the book’s concluding chapter is “Quit Fixing It”—which speaks for itself. The point is that many so-called reforms fail to achieve their goals while producing unintended consequences that make matters worse. He wraps the book up by looking at two things: One is campaign finance, and the other is how parties contribute to representative government and what happens when there is no one to fill that role.
On campaign finance he says, “Changing the way our campaigns are financed has become a business unto itself, an ongoing crusade to rid politics of the scourge of money and, indeed, corruption” (p. 151). Masket adds, “It should be noted here that political scientists have generally had a very difficult time identifying any effect of campaign spending on the behavior of elected officials.”
Of course, he mentions cases of illegal graft, however, Masket cites research that finds limiting campaign contributions makes partisanship worse (p. 152). This is because formal party organizations tend to fund more moderate candidates. Limiting funding sources results in individuals and interest groups finding ways to give money. These independent actors tend to be more ideologically motivated—and this reflects on the candidates who end up being funded and elected.
On parties, Masket points to how they provide information to voters for the ballot. Research shows half of voters cannot name their state legislators (p. 161). Parties package social and economic issues for voters; who in turn use the party cue on the ballot to help choose candidates. When there is no party label, many voters tend to roll off the ballot—meaning they simply skip races.
Regardless of this potent informational tool, Masket says parties are viewed by most people as corrupt organizations. The scholar adds that political actors can find willing allies in the American people if they frame their reform proposals as curbing the power of parties (p. 159).
Masket does point to Ranked Choice Voting and media reform as promising ways to fix what is ailing our democracy.
I highly recommend The Inevitable Party to people who are interested in political reform. My short review barely scratches the surface of information available in the book. While Seth Masket provides an interesting narrative on how election rules impact representative democracy, there are sections where he plugs data into research models.
This book just confirms what I have been urging reformers to do—which is to take a holistic view of elections. Instead, many reform proposals attempt to tack structures on top of existing dynamics, which could be failing themselves. For example, Seattle has several features of its electoral system, with many of them implemented decades apart. There are mandatory runoff elections, an August primary, a strong mayor system, a nine-member council elected by seven single-member districts with two winner-take-all at-large seats, non-partisan ballots and public financing of campaigns. Maybe some of these existing features should have themselves been reformed before the recent introduction of districts and public financing? I followed the campaigns for districts and public financing respectively and recall no mention of how the reform proposals would interact with existing features—or even why the existing rules were there in the first place. Instead policy entrepreneurs argued along the lines their proposals would reduce the impact of special interests on the political process and increase the influence of individual citizens.
Reformers should recognize that political association is the voice of a group of people, and when combined with social networking, the potential is promising. We already see it with crowd-sourced campaigns. If the parties themselves embrace the openness that can be fostered with technology, a new kind of association could emerge. The effect of this lets parties package issues while at the same time interested citizens pool their resources around candidates who articulate the message.
Instead of creating more rules on top of an already broken system, lets instead strip away the existing prohibitions on parties and allow groups of citizens to do what comes naturally—which is associate and rationally pursue their interests.
In 2018, our state legislature is set to pass the Washington Voting Rights Act (WA VRA). We need to support the versions of HB 1800 and SB 6002 that keep voting system options open for local communities when they face issues such as racially polarized voting. Like its federal predecessor, this would allow communities to find their own solutions to changing demographics and how it impacts voting—instead of an overly restrictive mandate from Olympia.
We’ve already seen how mandates limiting local options has had policy consequences.
In 2014, US District Court Judge Thomas Rice issued a summary ruling finding the City of Yakima’s election system in violation of the federal Voting Rights Act of 1965 (VRA). The court said Latinos could not elect a candidate of choice under the City’s at-large winner-take-all system.
Yakima had to find a remedy to problems with its voting system. However, an exclusive district mandate is not in the federal VRA, so the city looked for at-large solutions to better fit its circumstances
Considering Yakima has no independently elected mayor, with exclusive districts, there would be no city-wide representation whatsoever. Therefore, the City offered a remedy of a hybrid district / at-large system. The proposal featured five single-member districts—including two exclusive majority-minority districts; along with two seats in a modified at-large arrangement.
The City Yakima, looked to established case law within the federal VRA for modified at-large by proposing a Top-Two Plus voting system. This kind of voting is identical to how primaries are currently run in our state. The “plus” feature is—the top-two vote getters win the election. Each voter gets one vote towards electing two seats. There is no primary with this kind of election. With this version of proportional representation, winning takes no more than a third of the vote.
I believe proportional representation is a better way to facilitate minority representation. This means racial and political minorities.
While this type of voting may sound new to some, more than 100 jurisdictions in the United States use similar systems—many as a remedy to VRA cases. For example, a federal court just last year allowed the Ferguson, Missouri school board to choose a modified at-large voting system to remedy their VRA violation and the plaintiffs and ACLU backed the remedy.
But in Yakima, the plaintiffs and ACLU opposed the city’s proposal by citing state law not accommodating modified at-large. Judge Rice sided with plaintiffs and imposed an exclusive seven-district voting policy on the City for the 2015 elections and beyond.
The 2015 elections were historically good ones for Latino voters in the plaintiff-drawn district maps—although there were wide disparities in voter participation. Those turnout disparities continued in 2017. In the general election, the majority-minority District 2 produced 807 voters—while District 6, drawn for whites, had a 3,545 voter turnout.
Even though District 2 was drawn specifically for Latino voters, 71 percent of the district’s voters chose a white, non-Spanish speaking candidate Jason White over Latino Pablo Gonzalez; after the incumbent Latina finished third in the August primary that had even lower turnout. White’s overwhelming win challenges certain expectations and assumptions regarding voting rights, racial policies and who is expected to win and lose elections.
There are also the policy consequences bore by every one of the City’s voters regarding accountability with their city council. Yakima voters can now only vote for one seat on their council—once every four years. They used to vote every two years among all candidates.
FairVote submitted an amicus brief in the Yakima case. If our hybrid district / modified at-large remedy were granted by the federal judge (who I believe had the power to do so), the City’s voters could have had a say on a majority of four seats with their council. The wild disparities in voter turnout between certain districts would have also been negated some with larger single-member districts, and the obvious lack of districts with modified at-large voting. I understand the worry that Latino voters might not turn out at the same level as white voters, but I also want to see rules that create incentives for more equitable participation.
Modified at-large voting is also more dynamic than locking voters into single member-districts for 10 years—better over time accommodating inevitable demographic changes. This way, voters from all walks of life have the equal opportunity to elect a candidate regardless of where they live, or where in the city they choose to move to. This kind of voting also accommodates volunteer entities like school boards, as a pool of candidates can be drawn from the whole school district instead limiting single-member districts.
Modified at-large voting essentially does away with gerrymandering. As we have seen in Yakima, voters can decide for themselves who will best represent them without political elites making rules to meet their own expectations.
It is very difficult to hold a federal judge accountable. Fortunately, there is leadership in Olympia which supports the current WA VRA with local options as a way to avoid time consuming and expensive federal litigation. It’s important to keep those options in the bill instead of mandating exclusive single-member districts from above.
When a jurisdiction considers options such as districts, modified at-large, or a combination of the two, local auditors must be consulted. Voting equipment can always handle a single vote system as proposed in Yakima, but not always with variations like the Ranked Choice system that gives voters even more voice and power. Jurisdictions will want to weigh the potential financial cost of not going to exclusive districts and how any voting change could require a voter education effort. Again, the local elected voting official is best suited to offer information to a community considering its options.
The Washington State Voting Rights Act will only be stronger with remedy options that offer attractive solutions to help address challenging issues of race, voting and the politics around them. After all, it’s voters in their own communities who must benefit from this new voting policy.
|Thump, thump, bam, thump.|
The Wall Street Journal
is reporting Facebook will be requiring more transparency with political issue ads. “The latest [Facebook] move will cover “issue ads”—those that don’t specifically mention a candidate but weigh in on a divisive issue, including during an election campaign. Such advertisers will be required to confirm their identities and locations with the company.
This is the approach I suggested in a November 1, 2017 Rolling Stone op-ed
. Hey Google!!! Are you in?
I want Facebook to know I am happy to help anytime.
On Twitter Lee Drutman
is pointing out how Democrats could win a majority of votes nationally this November—but still be in the minority in the US House of Representatives. This happened as recently as 2012.
How? One factor is Washington’s Redistricting Commission
packed too many Democratic voters in Seattle, while other similar voters were sprinkled around other places in the state.
For example, in the 2012 election
, the Democrat in Seattle's WA07 won 298,368 votes, for 79.65 percent of the vote. This is in an election with 85 percent voter turnout!
I live in the southwest corner of the state in WA03. In the same election the Democratic candidate earned 116,438 votes for 39.62 percent of the vote.
In WA07, for the all of the turnout, Democrats got one seat. There could have been 100 percent turnout for the Democrat and the result would be the same. In WA03, for a decent showing of 40 percent—Democrats got nothing. This used to be a competitive district, however, it was the first election within the new 3rd district; where the Commission drew Olympia, with all its Democratic state employees, out of the district. This basically made the 3rd a GOP safe seat.
Single-member districts can skew outcomes through arranging voter populations. Combine the Democratic voters in the districts mentioned above and see how 414,806 votes won only a single seat. This leads to how majority Democrats lost the US House in 2012, and very well could wind up in the same place again for the 2018 election.
The way we elect US House members is the result of political decisions made in various states and US Congress. There is no mandate in the United States Constitution for 435 House seats elected with single-member districts. Here is Drutman on the Fair Representation Act
. It is about using proportional representation to elect House seats as a way to minimize the wasted votes like we found in 2012's election.
This system is good for urban and rural Democrats. It’s good for urban Republicans
. It also creates space for independents and third parties.
Washington’s redistricting commission puts power in the hands of political appointees. Here is an idea for you: How about instead we put power in the hands of voters themselves? Yes, let voters decide who represent them—after all these are the folks who pay the taxes and live under the laws and rules passed by government. We can do this with multi-member districts electing candidates with fair proportional voting rules. No constitutional amendment required.