The Supremes Centre Stage

Over the past two weeks, foreign observers of American politics might be forgiven for thinking that two estates of government, the executive and the legislature, were the only game in town and that the third estate, the judiciary, was almost an afterthought. The Senate and the House have waged an epic battle over the Republicans’ efforts to reduce the federal budget and the President has weighed in, occasionally using incendiary language, as his opponents tried to steal a march on his policies. 

However, any thought that the Supreme Court was taking a back seat would be a grave error. Whilst the Supremes are not engaged in the current spat in Congress and the White House, the Court will soon rule on McCutcheon et al v FEC, a challenge to limits on federal campaign contributions by individuals. More of this case later.

The history of campaign finance reform in USA is complex. I don’t propose to go all the way back to Andrew Jackson’s presidency, when corporations sought to influence politicians by “money power.” Congress has made many attempts to limit what can be gifted to politicians in support of their election campaigns, with statutes passed in 1907, 1910, 1911, 1925, 1943 and 1947. They proved largely ineffective.

In 1971, Congress passed the Federal Election Campaign Act, requiring broad disclosure of campaign finance. Three years later, the Act was widened to establish a comprehensive system of regulation and enforcement. Limits were imposed on campaign finance. Everything in the garden of restrictive political contributions appeared lovely.

Enter the Supreme Court. In 1976, the Court’s ruling in Buckley v Valeo struck down FECA limits on candidate’s spending unless the candidate had accepted public financing. The Court’s grounds for its decision equated to the view that spending limitations were a violation of free speech. This interpretation of the extent of freedom of speech is both interesting and troubling. It expresses that money equates to speech and that an individual was entitled to spend his money as he saw fit. The decision led to a Federal Election Commission ruling that distinguished between “hard money” and “soft money” in federal politics.

In the simplest terms, "hard money" arises from political donations regulated through the FEC. "Soft money" is donated to political parties in a way that leaves the contribution unregulated. The difference boils down to a few crucial words and one administrative ruling. ­In 1978, the Federal Election Commission issued an administrative ruling that the funding rules established by law only applied to political campaigns, not to "party building" activities. The Commission didn't go into great detail about what constituted a party building activity, basically defining it as something that didn't explicitly tell people to vote for a specific candidate. Oddly, political parties uniformly ignored the ruling until 1988. In the presidential campaign of that year, people working for both major parties discovered the "loophole" and the race for soft money was on. Soft money has dominated American politics in every national election since then.

Because soft money is not regulated by election laws, companies, unions and individuals may give donations in any amount to a political party for the purpose of "party building," including advertisements seeking to educate voters about issues. However, the ads cannot take the crucial step of telling voters for which candidates to vote.

Many efforts were made in Congress to override Buckley v Valeo but they were killed off. The Bipartisan Campaign Reform Act of 2002, better known as McCain/Feingold, sought to overhaul the campaign finance laws, removing big money from federal politics. The Act was challenged from all quarters including the California State Democratic Party and the National Rifle Association. The Supreme Court in a 5-4 ruling upheld a number of key provisions of the Act but the litigation has not stopped and the Court’s increasing influence over campaign finance is strong.

In 2006, two cases weakened McCain/Feingold. In FEC v Wisconsin Right to Life, restrictions on political advertising were lifted, followed by the decision in Randall v Sorrell where individual contribution limits were struck down. What might have been thought as the final nail in the coffin of control on political contributions was the Court’s ruling in Citizens United v FEC. The finding was that statutory restrictions on expenditures were invalid. Now corporations and trades unions can donate whatever amount they liked as political contributions. In the 2012 presidential election, Newt Gingrich’s receipt of vast donations to keep him in the race for the Republican nomination was well publicized. A single contribution of $15 million was made to the Republicans by an oil corporation. Democrats, too, received vast donations from corporate interests.

Very soon, the Court will rule on the McCutcheon case, deciding whether it is constitutional to limit the amount an individual can spend on federal candidates. From the reports I have read, the decision will be tight but I suspect this conservative court is likely to rule on the side of free speech. The debate at the hearing was highly charged. Justice Bader argued: “Restrictions on campaign contributions promote democratic participation because candidates are forced to widen their fundraising. Then little people will count some.”  Justice Scalia’s retort was to ask whether a law that prohibits the speech of two per cent of the country was okay.

There is an argument that the public, i.e. the taxpayer, should alone fund elections. On its face, this seems a good idea but how would it be possible to start a new political party? Surely, the test of any political campaign contribution is that corruption, indeed the mere appearance of corruption, must be eliminated. Here, I use “corruption” to include seeking undue influence through spending power. A donation is not corrupt if it is made as a form of direct personal expression.

Do restrictions on political donations restrict free speech? I don’t see it. If I can spend a dollar on a political campaign, surely that is my expression of free speech. If I spend tens of millions of dollars on that same campaign, surely questions will arise as to what I want in exchange. Do I damage the freedom of speech of others who do not have similar resources? I believe I do.

Sadly, I suspect the Court’s influence on the forthcoming elections will be massive as restrictions on what people can spend are lifted again and again.

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Where Next the Republican Party?

Whatever the outcome of the present dispute in Congress relating to the budget, debt ceilings and Obamacare, it looks like the Republican Party will take quite a beating from the American voters. Polls last week indicated that only one quarter of those asked thought the Republicans were doing the right thing by holding the administration’s feet to the fire. This leads me to ask again why the House Republicans thought it was a good idea to mount another challenge to Obamacare in the budget debate, rather than waiting for the mid-terms next year, and why they believed that shutting the government down would play to their advantage?

Where do I start? Undoubtedly, a new Republican agenda was initiated by Ronald Reagan. He advocated a strong America leading the world in commerce, industry and restoring America’s military might, whilst failing to raise taxes to pay the bill for it all. His administration ran up huge deficits in the process but the voters loved his optimism, his willingness to take on Cold War opponents and his vision of the city on the hill. A healthy majority of voters didn’t seem to care what it cost.

George Bush, number 41, tried to bring the deficit under control but failed. “No new taxes” bit him in the bum! Bill Clinton occupied the White House for eight years, fought and won a shutdown against the Republican right wing, side-lined the House Republicans to boot and even presided over a government surplus. Who now remembers right-winger and Speaker of the House Newt Gingrich and his Contract with America? One hundred days of anti-administration bills saw the light of day in the House but the bills failed in the Senate. Gingrich scored a huge own goal when he complained about his seat in the rear of the aircraft on Air Force One on a trip to Israel. The public hooted at him out of influence. The Speaker became a busted flush.

George W. Bush, number 43, described himself as a war president. He ran up the biggest deficit ever. The War on Terror was expensive but big money was also spent on social security and healthcare as tax cuts reduced the federal government income. GWB’s policy was economics gone mad. But where were the Congressional Republicans when this was going on? Unlike the Democrats, who are often a law unto themselves, even when a member of their own party occupies 1600 Pennsylvania Avenue, the Republicans showed a remarkable ability to toe the party line. The whips earned their salaries. So there was hardly a peep of complaint that the American economy was sick.

When in 2008 the inevitable happened and a Democrat won the White House, the Republican Party had an epiphany. Instead of approving massive budget deficits, the Republicans suddenly saw the light and sought huge spending cuts, while holding onto the tax cuts. The Tea Party emerged with an interesting policy. I would express it in one word: “No.” Tea Partiers were opposed to all federal government spending except on the military and Medicare, which older Tea Partiers described as “an entitlement.” For the TPs, poverty did not matter, education and healthcare were for the families to deal with, save of course for their entitlements, and “the feds should keep their hand off our money.” How interesting that the first senior Republican to complain about this year’s shutdown of museums, monuments and state parks was Newt Gingrich. He wants a shutdown while keeping these buildings and parks open. Talk about having it both ways.

Every American with whom I have spoken in the last two weeks cannot understand the House Republican tactics. Whilst Tea Party Republicans oppose Obama at every level, they do not dominate the Party in Congress. Why do other House Republicans go along with the minority? My guess is fear of well-funded opposition to incumbents by Tea Party people in the 2014 mid-terms. Looking forward to 2016, presidential hopefuls want a Tea Party endorsement, not to mention financial backing.

Let’s get back to the shutdown. My belief is that a clean budget bill will be passed eventually. The Washington Post is reporting that twenty House Republicans are already in the “clean bill” column. If a clean bill is passed, together with an increased debt ceiling, Congressional Republicans will be humiliated. If so, it will be followed by blood-letting. Politicians are renowned for eating their own.

So, what does the future hold for the Republican Party if I am right? I do not dismiss the possibility of a moderate/right wing split, although I believe this is unlikely. However, the Democrats may benefit if some Republicans, faced by Tea Party opponents in 2014, switch sides. Obama might find he has more Blue Dogs in the House to keep happy. What I see is a party fractured. On one side, right wing Republicans will hold to their ideology, no matter if it means defeat at the polls. The remnant, those who were once called moderates, may try to keep their party intact/

If only I had a crystal ball.

Budget Fight at the O.K. Corral

On 26^th October, 1881, in Tombstone, Arizona, the most famous gunfight in the history of the Old American West took place. On one side were the Clantons, the Claibornes and the McLaurys. One the other was Marshal Wyatt Earp and his brothers and the infamous Doc Holliday. Over the past days, the happenings in Washington, D.C. have reminded me of an old western shoot out as Bills to fix a federal budget went to and fro between the Senate and the House of Representatives. Last night, the federal government was shut down. However, what is not clear is whether the Republicans are the cowboys or the law!

The two chambers of Congress are fighting over how to authorise funding for the federal government beyond September. What used to be routine has become an annual struggle as House Republicans see the Budget as a route to block the Affordable Healthcare Act, better known as Obamacare, the administration’s initiative to extend affordable healthcare insurance to some 40 million Americans. There is, of course, no relationship between AHA and the budget. However, members of Congress may attach a rider to any Bill, hence the actions of the House Republicans.

Are there justifiable reasons for the Republicans shutting the federal government down? It is not unusual. This is the seventeenth time it has happened, the last being in 1995-6 when Clinton refused to succumb to unreasonable Republican demands. Clinton won the 1996 election. End of argument as to who won the Congressional fight!

The Republicans present two reasons for the shutdown. Under the Constitution, they say they have a democratic responsibility to oppose spending which the country cannot afford. Perhaps they have a point if they were targeting the Budget. They want to defeat AHA, legislation which has passed through Congress and approved by the Supreme Court. Surely, the Republicans should mount their challenge to AHA in the 2014 mid-terms, not paralyse the government now.

They also say that the Obama administration has failed to control the massive government overspend. I’m sure they can point to much unnecessary expenditure in government departments but these will be comparatively small sums. They should ask themselves who created the federal government overspend in the first place? It started in earnest with Reagan but under Bush junior, the deficit grew to enormous proportions as the Republicans spent much treasure on wars in Iraq and Afghanistan, as well as phenomenal amounts on social security and healthcare. During Bush’s eight years, did the House or Senate Republicans seek to control expenditure? Presumably, they had an epiphany sometime around 2009.

What I see is a battle for the Republican Party and the possibility of a party split. Moderate Republicans must be worried about the 2014 mid-terms as a weak Speaker, John Boehner, struggles with the Tea Party radicals in the House. Boehner seems to have no real support from Eric Cantor, the majority leader, who probably wants Boehner’s job. Republican whip, Kevin McCarthy, is also in the running. Other Republican heavyweights like Paul Ryan and Rand Paul seem content to let the Tea Party have its way because they each need Tea Party votes if they run for the White House in 2016.

At the same time, Senate majority leader Harry Reid has not helped. He has advised the President not to talk to Republicans, characterising them as terrorists. Obama himself spoke to the nation last night, stating his case about the shutdown. I was staggered by his presentation. Where was the fire and brimstone, where was the anger? And is he privately telling Congressional Republicans how he will block any pork barrels or earmarks for their states and districts? I doubt LBJ would have been so controlled.

Sadly, I get the feeling that race has something to do with the shutdown. Tea Party Republicans cannot stand the fact that an African American occupies the White House, a place of government which they feel belongs to them exclusively. Do they believe this is sufficient justification for the actions they have taken?

If the shutdown lasts only a few days, little economic harm will be done but I suspect it will last into November. I also suspect the Republican hardliners will be beaten into submission by their colleagues as public opprobrium is heaped on them. I don’t see Obama or Senate Democrats yielding any ground. Time will tell.