Forget super PACs. A modest proposal for legalizing bribery

February 4, 2012 - The Washington Post - By Steven Pearlstein

Who says government can’t get anything right?

It was just two years ago that the Supreme Court, in a landmark decision, scraped away decades of barnacled case law obscuring our beloved Constitution and unequivocally established the right of corporations, unions and wealthy individuals to spend as much money as they want to influence the outcome of elections.

I doubt even Justice Anthony Kennedy could have imagined how splendidly things would have turned out when he crafted his tightly reasoned decision in Citizens United v. Federal Election Commission. Without the money from casino magnates and private-equity managers, just think of how many voices, how many opinions, how many great ideas would never have reached the voters in the Republican presidential primary.

Thanks to Kennedy and his colleagues, the 1 percent has funneled tens of millions of dollars to the new campaign “super PACs,” those independent groups run by former campaign aides that are prohibited from “coordinating” their efforts with the official campaigns (wink, wink). Already, super-PAC fundraising and spending has exceeded that of the campaigns. By the time the 2012 election cycle is finished, don’t be surprised if super-PAC spending reaches into the billions.

And why not? The prospect of another four years of Barack Obama in the White House, or a return of Democratic control in Congress, could cost businesses and wealthy investors tens of billions of dollars in additional taxes or foregone profits due to job-killing regulation. Why not spend a couple of billion every election cycle to insure themselves against such catastrophe?

Justice Antonin Scalia said it best when he noted, in an earlier dissent, that the limits on corporate political spending have “muffled the voices that best represent the most significant segments of the economy.” God bless Nino. It’s heart-warming to know that somebody in Washington is willing to stand up for the powerless and the politically dispossessed!

This effort to finally allow corporations a voice in the public square began in 1976 when the high court ruled, in a suit brought by conservative New York Sen. James Buckley, that there is no difference between money and speech, at least as far as the U.S. Constitution is concerned.

Over the years, in a silly and naïve attempt to reduce the influence of money in government and politics, Congress has tried to limit how much job creators and others among the deserving rich could spend or contribute to influence the outcome of elections. But the effect of such laws and regulations has only been to create ever more ingenious vehicles to get around them.

Now, with Citizens United, the Supreme Court has finally declared that “enough is enough.” The court didn’t just remove the limits to what wealthy individuals or corporations could contribute to independent (wink-wink) front groups. The five-member majority also invited constitutional challenges to limits on direct contributions to campaigns or political parties and to those silly requirements that the source of every contribution be disclosed in a timely manner.

This is a great victory for those of us who believe in free markets and support the sacred constitutional principle that corporations are people and that money is speech. With the legal and political momentum now working in our favor, we must take this campaign to the next level.

After all, no matter how many billions of dollars we might invest in campaigns or independent (wink-wink) front groups, all we can really do is influence the outcome of campaigns. Given the risks associated with the performance of the candidates, however, we can never truly be certain of the electoral outcomes. And as you all know, what the markets and businesses hate most is uncertainty.

So, I propose that we finally give up the charade that we are not “buying” elections and, in fact, do exactly that — mount an all-out political and legal challenge to laws preventing us from buying votes directly.

As you know, bribing voters is an honored tradition in this country, dating to the early days of the Republic. From the Federalist Papers it’s clear that the practice was known to the Framers; if they had found it incompatible with democracy they surely would have banned it in the constitution. Significantly, they did not — nor did they include the regulation of vote-buying in their enumeration of the powers vested in Congress. Therefore, we would be on solid constitutional grounds in trying to establish a property right of all citizens to vote in federal elections — a right that, like all other property rights, can be sold on the free market.

I’ve heard indirectly from Karl Rove that it is not necessary to buy the votes of all citizens to attain the certainty we require. His estimate is that by buying the votes of 10 million Americans every two years, focusing on the key swing states and districts, we can be assured of complete control of the White House and both houses of Congress, and through them the courts and the independent agencies.

I’ve done up a rough business plan for such an effort, based on a Bain & Co. estimate that the average price for a vote will settle in at $1,000. In an open market, of course, we have to expect competitive bidding from the unions (at least until we have succeeded in crushing them) as well as traitors to our class (Soros, Buffett et al). Even at that price, we’re talking a mere $10 billion per election cycle, or $5 billion a year, which on an after-tax basis works out to $4 billion a year. That’s a heck of a lot less than it would cost us if Democrats ever get a hold of power again.

The Chamber of Commerce, I’m sure, will be only too willing to charter the dummy Cayman Islands corporation that can serve as the financial pass-through, and to set up the U.S. front group to manage the political operation. Participants can rest assured that their role will never be disclosed to investors or the public at large.

Moreover, once the market is up and running, I’m sure it’s only a matter of time before Goldman Sachs and Credit Suisse dream up some clever derivative instruments that would allow us to legally (wink-wink) manipulate the market, as they have done with so many other markets.

I’m pretty sure Ted Olson would tell us that our best bet is to initiate a challenge to the outdated anti-bribery laws in Texas, Mississippi or Louisiana, so we can get the case before the Fifth Circuit. Chief Judge Edith Jones and her colleagues are as sympathetic to arguments about original intent as they are toward a rigorous “law and economics” analysis. Business groups will be quick to file amicus briefs. And you can be sure that Ken Cuccinelli and other attorneys general will weigh in with briefs arguing that if the government is allowed to prevent people from selling votes, what’s to stop it from preventing people from selling used pickups, those old issues of National Geographic sitting in the basement or even automatic weapons? Heritage can be relied on to do its usual economic analysis showing the surge in job creation that will come from an extra $5 billion in annual corporate investment.

The only worrisome pushback we are likely to get is from the National Association of Broadcasters and the National Cable and Telecommunications Association. Because of Citizens United, they are drooling over the prospect of billions of dollars in additional TV and radio advertising from the super PACs that will fatten their already fat profits and boost the value of their government licenses. Normally, we would celebrate such hard-won success, but in this case we will have to feign a more populist stance and argue that the money is better put directly in the hands of hard-working, middle-class voters struggling to pay the mortgage and put the kids through college.

We know that Fred Wertheimer and the other goo-goos will be all over NPR and the op-ed pages bellyaching about the corrupting influence of corporate money on government, as if that horse hasn’t long since fled from the barn. So we’ll need to get Mitch McConnell and Eric Cantor out there making the case that what’s great about America is it offers anyone the opportunity to become rich and buy votes.

The stunning success of the super PACs in the eyes of the public and the 1 percent gives us hope that the Supreme Court is ready to finish the work of bringing the magic of the free market to the electoral process. As Justice Kennedy put it so presciently in Citizens United, even “the appearance of [corporate] “influence or access . . . will not cause the electorate to lose faith in our democracy.”