Decriminalizing Politics

Kos notes that outrage over Republican politics of destruction and hate has started to boil over.

I will also go on record as being opposed to the related phenomena of the criminalization of politics as a matter of policy.

Criminal liable laws are wrong. So are laws like Colorado's that let the courts decide in a criminal case whether or not facts in a political advertisement were true. Strict "time, place and manner" restrictions on political expression, like strict parade permit requirements, free speech zones, school regulations of T-shirt content, and prohibitions on leaving political fliers in mailboxes, likewise violate the spirit, if not the letter of our nation's commitment to a politically open democracy. Equally troublesome are laws that permit theoretically private homeowner's associations to resort to the courts to enforce their own restrictions on political expression.

The political theory that underlies the agenda of goo-goo organizations like Common Cause has it backwards. The problem with politics in America is not that there is too much money spent on political advertising, but that there is too little. Our society spends orders of magnitude more money on advertising for toothpaste, razor blades, shampoo and Chevys than it does on getting out the message of the politicians that our society charges with regulating these advertisers and their products. Few candidates reach more than a small share of voters with anything more than their name, the office they are running for, and their party affiliation. But, politicians have far more complex messages to convey than toothpaste vendors. No wonder so many elections boil down to personalities instead of policy.

The notion behind Amendment 41 in Colorado that every gift or break given to a government employee is suspect is likewise deeply flawed. And, our nation and our state's convoluted campaign finance laws have turned political advocacy into a game of gotcha for lawyers.

Even in states like Colorado, where the vast majority candidates who are elected to public office were nominated through a political party caucus process, and vacancies in public offices are often filled by vacancy committees operated by the political party of the former office holder, campaign finance laws and elections laws neuter the power of political parties. Political parties in Colorado don't even have the power to keep people who aren't bona fide party members off their own primary ballots, and Colorado political parties aren't allowed to bind their members to any political stance in the state legislature. Party platforms are irrelevant as a matter of state constitutional law in Colorado.

Yet, what money is cleaner than political party money? Everybody knows what side of an issue a political party is on. They are, by their very nature, the antithesis of special interest politics. It is much easier to buy off a particular Senator or Representative than it is to buy off an entire political party, and it is much harder to hide the fact that a party has been bought.

Donors in Colorado are limited to $3,000 a year of contributions to all entities of a political party in the state combined (precinct committee funds, house district funds, county party funds, subject matter affiliated like the Stonewall Democrats, the state party, etc.), while they may, in addition, contribute to an unlimited number of candidates and political committees, in aggregate amounts that dwarf their contributions to candidates. A donor who contributed to every Democratic party candidate and every liberal leaning political committee in a general election could easily contribute over $60,000 a year in the aggregate within the hard money limitations of Amendment 27 and parallel federal contribution limits, before even getting creative. Why should the state be in the business of deciding whether political contributions should go to candidates or to political parties?

Ironically, a number of participants in Canada's political process have pushed to make political parties weaker precisely to create a more corrupt budget and appropriations process, in an imitation of the American system, so that rural provinces and local governments can benefit from earmarks made by their local member of parliament.

I also don't believe that our system of regulating non-profit organizations through the tax code, that makes churches choose between tax breaks for their members and political advocacy are wise. What is so bad about having the moral leaders of a community of like minded people express their views upon which candidate is more desirable directly? It certainly isn't hard to do so indirectly, so the practical impact of these restrictions is modest. Many mainline religious organizations have chosen to distance themselves from the political process. But, why should tax accountants determine what a minister can say on the pulpit?

Political activists are rightly concerned about the disproportionate impact of moneyed interests on politics. But, they tend to overestimate the degree to which their power flows from PAC contributions or the corporate form. Corporate personhood is not the problem. And, large enterprises, regardless of their form of organization, have power largely for two reasons:

(1) They have the resources to stay aware of opportunities to contribute to the policy making process and to provide information favorable to their cause to policy makers who themselves lack sufficient investigative and research staff to independently investigate the issues.

(2) They have the power to take unilateral action that can create, destroy or move jobs, change prices, and impact tax bases in reaction to actions taken by policy makers.

It isn't primarily the $500 campaign contribution that a CEO makes at a campaign fundraiser that gets the ear of a legislator. It is the fact that the CEO can choose to move 5,000 jobs out of the legislator's district to a more favorable jurisdiction.

Also, a quid pro quo analysis of links between money and the actions of policy makers fails to recognize that special interests of all kinds mostly act by supporting people who already agree with them at times where their support can make a difference, like during close elections, not by twisting the arms of policy makers to do something that they otherwise wouldn't do. Relatively crude bribery happens, although it is hard to prove. But, bribery or near bribery is far less pervasive than crude comparisons of contributions and votes on policy issues would suggest.

Federal judges, for example, because they are chosen through a political process and have public law questions as a large share of their docket, are frequently quite partisan players in the political process who often systematically favor or oppose corporate interests when presented with close questions of law. This happens despite the fact that they are probably the most independent, and least bought, actors in our political system. They receive neither campaign contributions nor any form of gifts from litigants, they must state in writing or in a recorded oral statement the basis of all of their decisions, and they are effectively immune to retaliation from other political actors.

Legislators would be even more partisan, even in the complete absence of campaign contributions (under a fully publicly funded campaign process) and without any personal gifts, simply because they must respond to the electorate. Removing these direct monetary impacts would move the American political spectrum somewhat to the left. But, the magnitude of this impact of greatly overstated by Noam Chomsky and his disciples. As maddening as it may seem, people aren't conservatives simply because they have been duped by the mass media and a vast right wing conspiracy. Instead, they are frequently conservative because their own stars are hitched to institutions that conservatives favor.

If we want a healthier democracy, we need to strengthen political parties, strengthen the institutional capacity of policy makers to independently research policy issues, change the electoral system to one that does not strongly bias the outcomes towards a two party system, sweep away the bureaucratic barriers the keep large numbers of voters from voting, shorten the ballot so that voters are only asked to decide questions they are in a good position to answer with only modest research, and invest substantial sums of public money in informing the public about candidates and public policy so that they can make informed decisions when they vote.

Institutions like Colorado style vacancy committees, similarly, discourage the politics of scandal, because removing one scandal plagued politician will only cause another with similar policy preferences unburdened by scandal, to take the incumbent's place. Why try to oust a President Bush clone over an affair, for partisan political reasons, if you know that the alternative is a Dick Cheney clone?

We also need to thin the thicket of regulations, political crimes and political fines to the bare minimum necessary to prevent blatant corruption, while instead establishing incentives in the political system itself, rather than as a band aid acting despite it, that make it hard to influence policy makers. And, we need to recognize that in a society where all of us rely for the vast majority of our consumption, and the vast majority of us rely for our livelihood, on big business enterprises, that the concerns of those enterprises have a legitimate reason to have input into the policy making process, because their interests are ultimately, the interests of the individuals who are impacted by those institutions.