Sunday, July 6, 2014

The rules

By Bill Kraus

The rules about how elections are to be conducted in this country have been set over the years by legislators and endorsed or modified by three centuries worth of supreme courts.

What has survived into the 21st century are a few guideposts and a pretty consistent trend.

In the 19th century the court said that a corporation is a person when it comes to political participation and regulation.

This meant that any rules about political activity or the funding of political activity had to include this interesting characterization.

For the better part of a century nothing much more changed until money became more important in the 1970s, and legislatures began to try to regulate its flow into the treasuries of candidates and their campaign organizations.

The next important rule of the Supreme Court on this subject said that money is speech, and because it is speech it cannot be restrained in ways that offend the Constitution’s first amendment.

This made it necessary to make another rule.

The rule the Supreme Court fashioned to both permit and limit political spending and participation was to exempt organizations and other political contributors from regulation if their speech/money did not say "vote for or vote against" any named person and there was no collaboration between the “citizens" organizations who were doing the spending and speaking and any candidate or any candidate's campaign organization.

Putting logic aside, these rules are quite clear and easy to follow.

Or not.

The "vote for or against" rule is not a problem. When unregulated organizations speak through their “issue” ads they simply resort to euphemisms which make the point they want made: “Tell candidate X to do or not do this or that” is the favored, and approved, language which means vote for or against without saying so.

Actual collaboration, collusion, communication, and cooperation between the monied "citizens" and the campaigns and candidates was also prohibited in any way, shape or form.

One would think that the people who are subject to these rules would be very careful to stay within their mandated boundaries and not, to put it another way, have a foot in both the free speech and the political campaign camps.

The verbal dispute raging in Wisconsin at the moment is about whether The Club For Growth (to take the most prominent example), which the Supreme Court considers a free speech protected “citizen,” has a foot in the recent recall campaigns in fact or in effect. If it did, it would have had to follow the rules that regulate campaign organizations and candidates about contribution limits and names of contributors, which it didn’t do.

This sounds simple. It isn’t. Even judges who are presumed to be above the partisan political fray disagree on the “facts” that have been given them.

The possibility that this will be settled or decided quickly is low. The possibility that this case or one like it will end up in the Supreme Court is high.

As, if, and when it does, do not bet the farm that the 21st century Supremes will depart from the hard-on-regulation precedents set by their 19th and 20th century predecessors.

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