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The 17th Amendment

July 13th, 2010

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years…

There’s a push from right-wingers to repeal the 17th, along with some other amendments as well, not to mention some new amendments they want added. Curious, as the right wing has also been busy of late bashing Obama, Kagan, and Thurgood Marshall for saying that the Constitution, when written, was an “imperfect document.” Strange that they wish to tinker so with perfection.

In any case, I was curious as to why they 17th was a sore point with them. What’s wrong with the people electing senators directly? Well, according to the groups who want this, if the people elect senators directly, that means that the individual has less power. The only way to empower the individual is to take away their right to vote for a senator and put it into the hands of the state legislature. That makes sens–wait, huh? What?

Well, they do seem to have a point: they say that since public elections are driven by money, that means that senators don’t really listen to individuals from their state, and instead give their full time and attention to corporations who fund their elections. OK, fair enough, as far as it goes–but I don’t really see it as being that big a difference.

First, you have the illusion of a state legislator or a congressman paying more attention to you simply because they have smaller constituencies and they must be elected more often. But do they really pay any more attention to you than they do their financial backers, or does it just seem that way?

Second, the link between you and your senator through your legislator would still be removed. Your local legislators would have their own agendas, no doubt, and if they truly controlled the senators, they would be just as wont to abuse the power as anyone else. Not to mention that there would still be plenty of chances for others to get in the way. And that leads to the third objection to the change: money follows power. Instead of dealing out the money men, the money men would simply move to sway state legislators instead of senators directly, and you’d be back at square one.

No, there’s only one way to attack corruption of this kind, and that’s to directly address the issue of money and elections. Two things need to be changed–more descriptively, two obscenities must be erased from the law books. First, the concept that a corporation is an individual and has the same rights as one. The individual rights of a corporation rest in the rights of the people who make it up; the corporation itself is a legal fiction to serve an economic purpose. Giving corporations personhood creates super-powerful “individuals” whose psychological makeup is, by nature, that of a sociopath. The fact that they control large amounts of money and thus power in our government is at the heart of what is what is most wrong with us today.

The second obscenity is the concept that money equals free speech. No it doesn’t. If money equals free speech, then we live in a plutocracy. And that’s the current legal status. If money is free speech, then anyone who makes more money instantly has more power, which goes against the very idea of a republic which practices the principles of democracy:

Republic: a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch.

In theory, a republic could be consistent with a plutocracy, but that’s not what we were brought up to believe. Maybe democracy has always been a fiction to placate us, but if we’re even going to pretend, then we must hold that the idea of money being equal to speech is poison to what we believe in.

What we need to do is to change politics in two ways, and they have to be doozies. The first is to limit the way elections are funded. The only money that should be allowed in an election must come from individual citizens and nowhere else. And each citizen may contribute no more than $20 to any one election (including their own–no personal fortunes) or specific issue. Why $20? Because more than that and the money of one individual starts to outweigh the money of others who cannot afford it. Either that, or do away with contributions altogether and make elections funded completely by the federal government. Whichever the case, the idea is to prevent large donations from making their way to politicians and thus corrupting the system.

The second way is the real game changer: political advertisements. This is where “speech” really comes into it. And this may require an amendment to that holiest of amendments, the First Amendment itself. Like it or not, political advertising sways elections, and those advertisements are bought with money. It must be made so that public advertisements which impact elections, either on issues or candidates, must be regulated. Not forbidden, but limited to those funded by the people directly. Each advertisement can only be funded by individuals giving no more than $20 each. Remember above, I mentioned the $20 limit applying not just to candidates but to issues as well; this is what I was talking about.

What’s more, the ads can only be paid for by groups that specifically assemble for the purpose of representing such issues or candidates; you can’t have unions or organizations assembled for any other purpose doing it, else you have people who gave money for something else suddenly finding their money spent on something they disagree with.

Again, either this, or nothing–no ads at all, and we assert the right to use the public airwaves, allowing politicians to make speeches, give presentations, and have debates for specified blocks of time. This does not obliterate free speech–in fact, many countries do it. In Japan, where I live, that’s how it’s done–no campaign commercials. Other countries limit advertising as well. It may go against the grain of free and unfettered speech, but it is the only way to remove the worst of poisons from the system.

Is this a curtailing of free speech? In a way, yes–but in a very fundamental way, no. Because free speech is not supposed to be about rich people having more say or a louder say than anyone else–it is supposed to be about all people having the right to say whatever they want, whenever or wherever they want. But the central principle of that is that everyone is equal, and money playing a part destroys that essential equality. The system I describe above would not prevent anyone from speaking freely–it would only prevent a few from drowning out the rest simply because they have more money than others.

We’ll never get around money buying power. Rich people will still own and control newspapers and media networks, and there are other ways to use money to influence the people as well. But just because money will always have a say doesn’t mean that we shouldn’t do our damnedest to limit what influence it does have.

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  1. Geoff K
    July 13th, 2010 at 17:46 | #1

    In the 2008 election, how many magazine covers and fawning media articles did Obama get? If neither he nor McCain could have advertised, McCain would have been invisible by comparison.

    So now you need a “fairness” rule that tries to ensure both parties get coverage. But now you really are limiting freedom of speech. No magazine or newspaper or news show wants to police how much time and space they spend on each candidate. Worse yet, they don’t want to give away space and time for free to a candidate they probably dislike.

    The fairest system is the opposite of what you described–let anyone contribute what they want and spend what they want. Yes, that gives the rich a head start, but that’s true for pretty much everything in life, not just politics. And you can spend a fortune and lose–ask Mitt Romney. Corporations, Unions and PACs are all free to spend money, but they’re not likely to all back the same candidate. So it cancels out to some extent.

    Which is better–muzzling everyone or letting everyone get their message out freely? The First Amendment says the 2nd choice is better.

    Finally, you’re wrong–in a lot of cases money=speech. To get your message to voters you need money. So no money=no message=no speech. And giving money is “putting your money where your mouth is”. I certainly wouldn’t contribute to a candidate I didn’t support.

  2. matthew
    July 13th, 2010 at 22:08 | #2

    @Geoff K

    I would argue that it is not necessarily the money that is the problem but the window of time campaigns are allowed to run. As it is now, it is campaign mode–all the time.

    If there was a set time limit–say 6 weeks before an election—there might be an improvement in the entire process. But who knows how this might play in the states.

  3. Tim Kane
    July 13th, 2010 at 22:46 | #3

    Free speech means nothing if it is patently unfair.

    This is a classical problem for law and democracy.

    In jurisprudence, fairness/justice must trump freedom/liberty else tyranny prevails. In fact, this is the genius invention of English Common Law over a period of about 500 years – generaly speaking. The issue penetrates the political speech issue as well.

    We need amendments that preserves the sovereignty of the electorate, manifested in the both. That would include the following:

    + Spending caps on campaigns for office. (It worked for the NFL).

    + Spending caps on political contributions so that they don’t exceed that of the mean citizen’s ability to participate -(after all it is supposed to be a democracy)

    + As the sovereignty is vested in the electorate, manifested in the vote – any attempt to dilute the sovereignty of the electorate is moral and cognizable treason. Therefore Lobbying is allowed, but at no point can one lobbying the government give comfort, aid, or money to a public official, and likewise at no point can a public official or one intending to be a public official (campaigning) receive comfort, aid or money from one attempting to lobbying. Lobbying is limited to providing information only to public officials.

    + Finally congress can set a campaign season of no more than 3 months.

    By providing for campaign caps, I suspect the amount of caps would actually shrink over time, for two reasons: first, because politicians hate the whoring of themselves out for money, if they can shrink a cap for an office they’d do it; the lower the cap the bigger the advantage to an incumbent, generally speaking.

    In regard to News organizations I would pass an amendment allowing for the re imposition of the fairness doctrine, with specific emphasis for
    responsibility in journalism and media content. You have free speech, but at the same time, you don’t have the freedom to yell ‘fire’ in a crowded theater – there is a responsibility for publically intended speech. Fox or Palin shouldn’t be able to purposely and intently misinform the public – like on the use of death panels for end of life counselling – that is patently irresponsible and immoral and a shirking of a duty to properly inform the public. This occurred again in the post Luis makes right after this one – a right wing ideologue deliberately lying and attempting to misinform the public. In my mind that is irresponsible and indeed, a form of moral treason. I’ll let you imagine the kind of penalties that are appropriate for treason.

  4. Tim Kane
    July 13th, 2010 at 22:47 | #4

    @Tim Kane

    I meant manifested in the vote (not manifest in the both). My fingers have a mind of their own when I type.

  5. Geoff K
    July 14th, 2010 at 12:05 | #5

    The Fairness doctrine is simply not enforceable in a reasonable way on truly free media. Do you think CBS News wants to spend 50% of their time promoting conservative causes? How about Newsweek or the NY Times doing that? And do 50% positive stories on Democrats and 50% negative stories on Republicans balance fairly? So not just space, but actual content have to be policed. Do Radio stations have to drop popular conservative shows (e.g. Rush) to air unpopular liberal ones (e.g. Air America) for “balance”? Who will pay the advertisers if there are no listeners? The President is always newsworthy and his party and views are bound to get more space. How should the opposition party be “compensated”?

    Rather than trying to police the free press, we should just let people vote with their ears and wallets what they want to listen to. Both conservatives and liberals have places to get their opinions heard, so there’s no reason to force an artificial “balance” on the media.

    Campaign caps are an option, but the net effect might be to prevent politicians from campaigning effectively in some expensive markets (or to limit them to running in markets that they think they can win in). As you pointed out, it’s a major boost for incumbents also, who start with more name recognition and a bigger war chest. Add in Gerrymandering and shorter campaigns and you’ll make it almost impossible for effective challengers.

    Finally, lobbying politicians with money is called “bribery” or “influence peddling” and it’s already illegal, the last time I checked.

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