Separating the Clashing Political Titans: Hey, Guys. Maybe It's Not About You Anymore!

SNAKE!!!!

One jacket blurb characterizing Bradley A. Smith's book Unfree Speech: The Folly of Campaign Finance Reform, is all that is necessary to convey my general opinion of this book.

"Enlightening and entertaining....There are many who will disagree with Smith's findings and conclusions. But this is a marvelous contrarian view: moderate intone, elegant in language, clever in argument." - Publisher's Weekly

Bradley A. Smith was associated with the Cato Institute.

I quote:

If efforts to shut off the flow of legal contributions are futile so long as government continues to grow, this argues for disclosure, and disclosure alone, as the appropriate solution to concerns about corruption. The most credible argument for regulating campaign finance, and the only one recognized by the Supreme Court, is the prevention of corruption and its appearance. Disclosure solves this problem by exposing potential or actual conflicts of interest. Disclosure allows individuals and groups to fulfill their desire to participate freely in the system. Some, of course, may still want to hide their activity, but doing so becomes the difference between legal and illegal activity, a potentially high cost for the slightly added benefit of nondisclosure. Assuming that the contributor's primary goals are to affect who is elected to office and what policies are pursued by the government, the added burden of disclosure is relatively little. Because the basic desire to participate can be fulfilled legally, so long as contributions are disclosed, most contributors and candidates will comply with disclosure requirements.* For those overly concerned about the "corrupting" influence of contributions, this disclosure provides voters with information that should deter improper legislative behavior.

* Disclosure is not without its problems. It can also have a chilling effect on speech; see McIntyre v. Ohio Election Commission; Brown v. Socialist Workers '74 Campaign Committee; and National Association for the Advancement of Colored People v. Alabama. It also smothers speech by subjecting small players to heavy regulation. For that reason, some have suggested that disclosure levels should be set at a relatively high level. Larry J. Sabato and Glenn R. Simpson, Dirty Little Secrets: The Persistence of Corruption in American Politics, 332. (Smith's End Note)

Page 176, Unfree Speech, Bradley A. Smith, 2001, Princeton University Press.

Whether or not this is a strong enough government interest (undue influence) to justify a regime of disclosure, given the burdens that disclosure places on grassroots political activity and its infringement on First Amendment liberties, is hardly an easy question. It may be time to question whether even disclosure is worth the cost, or at least to consider other options. Ian Ayres and Jeremy Bulow, for example, have suggested taking the route opposite from disclosure. They argue that retaliation could be avoided and alleged corruption deterred by mandating that all contributions be made to blind trusts.* Although skeptical that this is the solution, either, it represents the type of creative thinking, that may deserve more attention, rather than efforts to ratchet up the level of regulation.

Page 224, op cit.

*Ian Ayres and Jeremy Bulow, "The Donation Booth: Mandating Donor Anonymity to Disrupt the Market for Political Influence."

Thank you, Brad. May we take that to mean that Ed Crane and other scholars at Cato are willing to revisit this very concept which I presented to them in 1994? If that sounds a bit churlish, I plead that I have been on this topic for thirty years and I am growing a little impatient.

The war over the First Amendment for the last thirty years has been between two contending forces. The forces of Platonic Idealism who desire politics in a perfect form and the forces of Aristotelian Pragmatists who desire to refute perfectionism with pleas for moderation. The Platonic advocates of campaign finance reform have a static ideal, namely democracy as a perfect harmonious arrangement of identical forms (people). Their opponents reject that view for democracy as an Aristoliean process toward a form which cannot be known a priori. What that means in Okiespeak is this: You guys been fightin' over the wrong thing.

May I suggest a rough definition of democratic politics as the peaceful (non-coercive) disputation over the means and ends of coercion. If the disputation ceases to be peaceful, it is not democratic at all. Game over. Logic can inflict great mental anguish, but it cannot kill. Democratic politics is good so long as all it can cause is great mental anguish.

To the extent that coercion predetermines the outcome of the dispute, it kills logic. If you cannot argue without physical harm or the threat of physical harm – loss of life, limb, property, or liberty, then you have NO arguments.

The whole scheme of campaign finance control proposed and employed for more than thirty years is based on expanding the sphere of coercion to engulf all forms of disputation. This is what Smith argues is the fundamental flaw of the advocates of campaign finance – is that it must grow until all 'loopholes' are closed. I say the loophole the totalitarian Platonists want to ultimately close is everyone's mouth – even their own! If only everyone would shut up, disputation could be perfectly peaceful and unanimity would rule forever and ever, Hallelujah! Since people refuse to see the logic of the Platonic argument, they must be made to shut the f—k up!

As you can see, I do not argue as moderately as Professor Smith. The moderate Prof. Smith is a good man, a fine scholar, and except for a paragraph here and there I cannot take great exception to his arguments. He understands the Platonic Titan he is grappling with. The poor Platonic Titian is massive and he can roar like a woman – oops – like a lion. But the Platonic Titan campaign finance reform has a handicap he abhors - shifting out of his perfect static pose. His position is perfect why should he be flexible? Whenever he is driven by logic or votes to shift he is just enraged to redouble the rigidity of his position. When it comes to the final solution of politics no hair must be left out of place or the whole damn universe will be spoiled.

What I propose is to tap the mighty Titans on the shoulders, ask Professor Smith to step back, look down as I whisper in his ear – "Pull the f—cking rug out from under him."

Now the good Professor has already hear a murmur in one ear. The good professors Ayres and Bulow have already said "disclosed donations, that's the rug." I'm not a professor, I can be more emphatic. Besides I saw this coming.

Now, if you would re-read the except from Dr. Smith's excellent book again only this time substitute the word disclosure with anonymity. Where it says "Some, of course, may still want to hide their activity, but doing so becomes the difference between legal and illegal activity, a potentially high cost for the slightly added benefit of nondisclosure." ; I rewrite it to say that: Some, of course, may still want to reveal their activity (donating), but doing so become the difference between being believed and being disbelieved, a potentially high cost for the slightly added benefit of anonymity.

Which solution is less coercive? Forcing disclosure and punishing those who don't, if you can find them, and upsetting the hell out of folks in the process of discovering and apprehending the scoundrel; or, forcing anonymity in a particular place, at a particular time, using very particular technical means. The disclosure regime must cover all people at all times. The anonymity regime means that first the smaller class of people called politicians have only one place and one way to get the legally money. If anybody, anytime, anywhere shows them the money and they take it – sting! Second, the donor with no nefarious intent doesn't have to hire any lawyers, keep any records, accept any subpoenas, pay any fines for missing any reporting deadlines, etc. – and neither does the candidate!

If you want to give money to a candidate (or a committee circulating an initiative petition, whatever), you go to a certain place – just like you do on election day to cast your ballot -and you give a clerk your money and show your ID – just like cashing a check. Got It? Then, the clerk takes your money and deposits it into a trust account for ALL candidates or committees. The clerk doesn't give you your own id back. You get two cards. One card is your 'key' to go into the booth - ALONE, the other is a 'credit card' good for one time use only which allows you to "pay over" an amount equal to what you just gave the clerk to a particular candidate (or committees). When you finish 'voting with your dollars', you return both cards to the clerk, the clerk verifies that the cards are "good" and returns your ID. It's all pretty much like voting. For the citizen, there isn't much illegal that they can do and if they try to jimmy the ATM or rob the bank, well we have plenty of legal resources to handle that. Not much coercion here. But wait!

What if the chosen beneficiary of the donation is standing there checking out the donation? How many candidates, or trusted agents of a candidates, are going to be able to verify that this guy really "voted with his dollars" the way he was supposed to? There is no receipt (duplicate ballot) TO PROVE WHO got the money. The problem becomes especially problematical for the "verifier", if the donor, while in the booth, simply enters a special instruction that will send the money he just gave the clerk RIGHT BACK INTO HIS OWN ACCOUNT!

OK. I'm not going to get into the mechanics any further. The point here is IF donor anonymity can be reasonably assured by a preponderance of the evidence, even though it may be not assured beyond the shadow of a doubt, it will be as secure, if not more secure, than almost any financial transaction we make electronically today.

In fact, it will be in the interests of the candidates that this system work as flawlessly as possible because after all when the donor decides to give up the money and does it, for them it's gone. The candidate is the one who is really on the hook. If the system 'loses' the money, the candidate's anguish is likely to be greater than the donor's. Think what this system is doing. The donors are choosing to give up money with general utility for no immediate gratification in a tangible form. But when the candidate gets that money it will quickly become a commodity with very specific utilities. Campaign money is more specific in its utility, than donor money which can be used to take a vacation, for example. On the other end, very few candidates can hope to maximize the utility of that money in their campaign by taking a vacation. Even though some candidates might wish they had after the votes are counted.

All the candidates have to get their campaign funds from one blind trust – it is the only trust whose trust has to be verified and the entire commercial banking system is there to verify what goes in and what go out of the trust. The candidates are issued debits cards to pay their campaign expenses. I have more details about this but the details are not relevant. Suffice it to point out that there is an audit trail for the money all the way from the trust through the candidates to the vendors of goods and services who get the donors money and it passes, mercifully, back into the normal economy.

Once the donor anonymity has been secured, everything is disclosed. The total cash balance of the Trust, the balances of all the candidates subaccounts, who spent how much for what to whom, etc. Put all that detail on the Internet, how's that for lowing the public's cost of information. As Professor Smith points out, "There is a simple and legitimate, though hardly flattering, reason for favoring disclosure(?). It is that we, as voters, are lazy." Let's make it really easy for the voters. If the candidate doesn't know who gave the money, the voter doesn't have a damn thing to keep tract of. Let the journalists dwell on the horse race of whose cash flow is rising and whose is falling and what is the effect of the drought in China on campaign spending. Yeah, the (?) is inserted.

So, the anonymity principle is more simple and more legitimate than the disclosure principle because it is easier on the voters.

Not only that, the anonymity principle is easier on the candidates. They are almost perfectly immunized against charges of favoritism and "corruption". BLAM, somebody's butt just had the rug pulled out from under it. What have the Platonists got to complain about? "It's not fair, that some candidates will get more money secretly from big donors. Voting means one person, one vote."

OK. Just rig the system so that nobody can give more than one dollar anonymously to one candidate.

"No, no, no! Some moneyed people will just give more to the candidates of one party and nothing to the other candidates. Not fair, not fair, not fair."

Yeah, just like ballots. Some people just vote a straight party ticket. Maybe, you guys should advocate that we call off elections – that will put an end to campaign finance influence and the corrupt influence of ballots on candidates. And by the way, you might want to get your butt up off the floor, there's a snake crawling between your legs.

That snake looks like its got a pattern on it's back that looks like words. It says, well, I'll be damn. It says "Don't Tread on Me!" Which government agency makes snakes wear warning signs?

Good night, Professor Smith...where ever you are.

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