Free Speech, Big Money, Bad Elections

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Paul Zimmerman/Wire Image/Getty Images
David H. Koch attending the opening of the plaza named for him at the Metropolitan Museum of Art, New York City, September 2014

The first Republican presidential primary debate on August 6 will be remembered for Donald Trump’s exchange with moderator Megyn Kelly about his retrograde attitudes toward women, but the debate’s most significant moment came in a different exchange altogether, between Trump and another moderator, Bret Baier. Baier asked Trump about his reported donations to liberal politicians, Hillary Clinton and Nancy Pelosi—donations that might be seen as disqualifying to loyal Republican primary voters. Trump brushed aside the question, explaining: “I give to everybody. When they call, I give. And do you know what? When I need something from them two years later, three years later, I call them, they are there for me.” The truth of this comment was so evident that no one on the stage even took Trump to task for supporting the enemy. That’s just how the game is played. Rich people give money to candidates so that they can demand favors from them two or three years later. Next question, please.

In the midst of a presidential campaign, our democracy is in shambles. That Donald Trump, after loaning his own campaign $1.8 million in the second quarter of 2015 alone, has risen so far in the polls is itself a telling commentary on the electoral process. The conservative billionaire Koch brothers have committed to spending more money in the presidential campaign than either the Republican or Democratic Party spent in the last one. By August 1, Hillary Clinton had already amassed a campaign fund of nearly $70 million, and Jeb Bush had over $120 million.

As Burt Neuborne, a professor at NYU Law School, puts it in his important and timely book on the First Amendment, Madison’s Music, the super-rich, the wealthiest one to two percent, “set the national political agenda, select the candidates, bankroll the campaigns…, and enjoy privileged postelection access to government officials.” The rest of us are left to “navigate among the choices made available” by the super-rich.

Only about 40 to 60 percent of citizens vote in any given presidential election. The rest, who are disproportionately poor and members of minorities, do not even participate. Some are impeded from voting by unnecessarily stringent registration and voter identification requirements as well as narrow time windows for voting, long lines, and other obstacles. Many others have likely concluded that in view of the outsized influence of the rich, their votes wouldn’t matter.

At the same time, increasingly sophisticated gerrymandering has ensured that many elected offices are sinecures for one of the two major parties. In the House of Representatives, only about forty seats, or less than 10 percent of the chamber, are filled in genuinely contested general elections. The results can be perverse. In North Carolina in 2012,…


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