Saturday, January 28, 2012


Superpacs are American. We don't have them in Canada but they could be related to changes that are almost certainly going to be made to the Elections Act in Canada pertaining to political financing. Superpacs deserve attention for two reasons. First, because they stand to subvert democracy; second, because the rationale used to defend them against electoral reform measures illustrates the differences between Canada and the US.

Superpacs are committees that can raise large amounts of money for use by candidates. US campaign laws -- like Canada's -- prohibit large donations from a single individual to a single candidate or party. In effect, American thinking on limiting contribution levels is the same as Canada's: one should not be able to buy an office … at least in a democracy.  Superpacs are not bound by these limits and, theoretically, they are not part of a candidates campaign financing, even if the money they provide, say, goes into buying advertising that says "don't vote for my opponent."  Recently, one superpac is credited with keeping Newt Gingrich's presidential campaign alive. The Gingrich campaign had run out of money and was clearly not attracting a lot of grass roots support. A superpac stepped in and purchased something like $10 million dollars with of advertising for him. Superpacs are, then, a way of getting around rules that limit campaign contributions. If the goal of limiting campaign contributions is to ensure a level playing, superpacs are a way of getting around this.  Superpacs became legal through a court decision/ In its decision in the court case that made superpacs legal, the US court ruled that to not allow people to spend what they can/want on elections is a limit on free speech. If they happen to have ten million dollars, so this argument runs, and they want to spend that ten million on advertising that says "elect so and so," the state should not interfere and to do so constitutes a violation of freedom of speech.

This is an interesting argument but is it true? Does electoral financing reform designed to create a level playing field and enhance democracy, impinge free speech if it does not allow the rich to devote millions and millions of dollars (labour unions and corporations get the same privilege, btw)? This is important to Canada because it appears that the Harper Conservatives will take steps to eliminate Canada's electoral reform financing (perhaps under the guise of saving money) that impose limits on how much individuals can donate and provides some measure of public financing to ensure that parties -- if supported by voters! -- have resources. Why ensure this through the state? Why not just rely on citizens to donate? Because not all citizens have the same ability to donate. Should a political party suffer, one might ask (or, at least I suspect this was the logic) because its supporters are poor. If one did not have some level of state support and contribution limits, a party with a small number of wealthy supporters would have more resources then a party with a very large number of poor supports. One Irving could make up for … well … all of southeast New Brunswick I suspect.  At least, as I said, I suspect that was the logic. And, it runs counter to the logic used by the US Supreme Ct, which was: to impose a limit on what people can do with their money is an affront to free speech.  I suspect that at least some Conservatives or their supporter will try to use this latter argument in Canada as the federal Tories end electoral reform.  So … does it make sense?

The short answer is "no, this argument does not make sense." First, no rich person (union or company) is actually censored through campaign contribution limits. No one, for instance, loses their right to put up a web page, give and interview, call people on the phone, scream their message from the rooftops … etc.  No one is actually silenced. A claim for free speech is usually made because someone is being prevented from saying (or, writing) something. In this case, then, we have a claim to free speech that is unusual (this is, I remind you in the US) in the sense that this claim was made even though no one was actually prevented from saying anything.

Since no one was actually ever silenced by electoral finance reform, what we have here is an argument that runs thus: free speech is threatened if we do not allow wealthy individuals or institutions to operate in excess of the already agreed upon limits. This last clause is important. No one is saying that candidates can't advertise or that people cannot contribute to candidates. What they are saying is that we have agreed upon a set of rules about contributions (how much one can donate) but we are going to let some people not follow the rules. Everyone else, to be sure, has to, but wealthy individuals and institutions don't.

Does that sound like a defense of free speech to you? Think quickly about it, without reflection, and see what you determine. Rephrased the question is this: is it right to have one law for the wealthy and one law for the rest of us? Most people, I suspect, are going to conclude that this argument about donations to superpacs has nothing whatsoever to do with free speech. It is not a defense of it but an arguing that, in effect, says "let the rich opt out of laws they don't like." In other words, exactly how superpacs got to be about free speech is a tad confusing since they are not about speech but about its diffusion. They are not about one's right to say something, but about one's right to opt out of rules that otherwise apply evenly to all citizens. One might be able to make a good argument about an "opt out" clause, but that is not my point. My point is that why superpacs should be a speech issue is not clear.  And, since superpacs are not about speech, exactly how they are justified on the basis of preserving free speech is even less clear.

A second issue relates to advertising. This is important because most superpac money seems to go to advertising, that is try to effect the way people think about issues and candidates, hence its connection to free speech. The argument I often here is this: "advertising doesn't affect anything, people are still free to make up their own minds." Ergo .. one should not limit advertising spending because it treats adults as children who are not free to make up their own minds. This argument is not really about free speech per se either, but more about whether or not advertising has an effect. In effect, this argument suggests that one should not be too concerned about the fact that the wealthy are treated differently and allowed to by mass amounts of advertising that advance their electoral choices because advertising is really of no use since adults will make up their own minds. What do we think of this argument?

To find out, let me ask the question a different way: if advertising (the use to which superpacs put their money) is valueless, why were superpacs fighting to stay alive in the courts? Clearly, someone -- the people running them and donating the money -- thought they were useful.  The rich are not irrational. Large corporations are not run by fools. The people who donate millions of dollars (above contribution limits) to a candidate so it can be spent on advertising do so because they are trying to influence the way people vote.  These people are adverting because they see it as a way of affecting public views.The argument that we should not be concerned about having one rule for the rich and one rule for the rest of us is refuted by the rich themselves. In voting with their feet -- in buying advertising -- they are saying "we think this works." My point is this: it is not me saying that advertising works to convince people. Everyone who donates to a superpac thinks so, the people who fought in the courts think so, the people who run large companies think so.

So far, I've said that I don't find the arguments for superpacs compelling. Free speech does not require superpacs and no one appears to suffered from censorship before Superpacs emerged on the scene. The argument that superpacs spending is benign is problematic because the people running superpacs don't intend it to be benign. They intend it to have an effect.  It also opens up the troubling line of argumentation that constitutionally and legally sets up two sets of campaign contribution rules based on social class.  Now, to be clear. I am not arguing for Soviet Communism. What I am suggesting, however, is that Canadians pay some attention to what is going on in the US before we change our electoral financing laws. Our laws are not perfect. But, they have served Canada rather well to this point. There is room for reform but that reform sould move forward … and into a situation where money supplants democracy, silly arguments that have nothing to do with free speech are mobilized (and accepted) in support of political manipulation, and equal benefit of the law falls by the wayside.

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