Citizens United Basics Often Misunderstood
Sarah Kellogg’s look at the brave new world of election regulation purports to offer an even weighing of the arguments for and against campaign finance laws but ultimately paints a one–sided picture that effectively asks which speech restrictions are best to counteract some misidentified amorphous threat to our democracy (“Campaign Finance Frenzy Post–Citizens United,” October 2012).
Citizens United is one of the most misunderstood, high-profile cases ever; while it has inadvertently revealed the instability of our current system, it doesn’t stand for what many people say it does and certainly doesn’t point to the need for the government to punish certain kinds of political speech. For example, to correct President Obama’s famous line from his 2010 State of the Union address, the ruling neither reversed a century of law (overruling one anomalous case from 1990), nor allows foreign corporations to influence our elections, nor touches the limits on donations—corporate or individual—to parties and candidates.
Moreover, to the extent spending is up this election cycle, that increase isn’t out of line with the historical trend and is largely driven by the spending of wealthy individuals, the regulation of which has nothing to do with Citizens United. Billionaire magnates such as Sheldon Adelson and George Soros have always been free to spend as much as they want on independent political speech. And as a July 22 New York Times Magazine cover piece found, there’s no indication that there’s a significant change in corporate spending. That’s not surprising; Fortune 500 companies know it’s more effective to lobby. On the other hand, groups of individuals and smaller players now get to speak more freely: Your National Federations of Independent Business and Sierra Clubs, your ACLUs and Planned Parenthoods. So even if we accept “leveling the playing field” as a proper basis for regulation, the freeing of associational speech levels that field.
Finally, Kellogg quotes Harvard Law School professor Lawrence Lessig and U.S. Sen. Richard Durbin (D–Ill.) from a July 2012 Senate hearing but leaves out the testimony of the lone witness who came at the subject from a different direction. As I said at that hearing, the underlying problem “is not the under-regulation of independent spending but the attempt to manage political speech in the first place. . . . The solution is obvious: Liberalize rather than restrict the system. Get rid of limits on individual contributions and then have disclosures for those who donate amounts big enough for the interest in preventing corruption to outweigh the potential for harassment. Then the big boys will have to put their reputations on the line, but not the average person. Let voters weigh what a donation’s source means to them, rather than allowing politicians to write rules benefiting themselves.”
Senior Fellow in Constitutional Studies
Judges’ Salaries Don’t Need Defending
In response to Tom Williamson’s October 2012 “From the President” column: Yes, federal judges deserve to be well paid, but I question Williamson’s reasoning and his making this the D.C. Bar’s top priority. Of course, Article III, Section 1, would protect judges’ pay from sequestration cuts, but to imply that it should preclude loss of purchasing power from inflation is a stretch.
And statistics are tricky; a lot depends on what years you choose to compare. In saying average salaries have increased by 19 percent from 1969–2012 (while judges’ salaries haven’t) blurs workers’ good times in the 1970s with bad times thereafter. An average worker’s pay rose handsomely with productivity from 1949–1980. Since the end of the 1970s, millions of workers’ wages have stagnated or declined. Most workers’ inflation–adjusted pay has risen 6.4 percent, while income inequality has soared. In 1980 chief executive officer compensation was 42 times that of the average worker’s pay; by 2010, it was 325 times the average worker’s pay. Income inequality is a drag on the economy, undermining demand. But more important for lawyers, money brings power. (A point also illustrated in the Citizens United feature appearing in the same issue.) Income inequality translates into political inequality, transforming our democracy into a plutocracy.
Congress has seen fit to link judicial and legislative pay increases, and members of Congress have shown a bit of shame (or concern for reelection) in choosing not to raise their own pay while their constituents suffer. Moreover, my own sense is that judges and legislators are already out of touch with how ordinary Americans live. To most people, incomes of $147,000 and $194,000 seem quite handsome. In fact, Williamson’s comparison to the pay of senior law faculty, deans, and even associates in big city law firms—excessive, some would say—seems downright offensive. Believe it or not, middle income families, too, want to send their children to college and care for aging parents, far more easily done with current judicial pay than median family income of under $50,000.
The urgent priorities facing the nation are to restore our democracy and to bolster the economy by increasing average salaries. Then we can plug for judges to share the prosperity.
—Mary von Euler
Retired Government Lawyer
In the October issue of Washington Lawyer, we published a “Taking the Stand” feature, “Paying the Price of Disclosure” by Robert J. McCarthy, which was critical of the U.S. Merit System Protection Board (MSPB). Washington Lawyer failed to state that Mr. McCarthy had been a litigant before the MSPB, a fact which he noted in the previously published journal article on which his “Taking the Stand” piece was based. We regret our failure to make note of this fact, and we apologize for the editorial oversight.
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