In a 1977 episode of the TV show “Happy Days,” popular character Fonzie jumped over a shark on water skis to prove his bravery. The show, which had become a hit through its relatable portrayal of life in America in the 1950s and 60s, soon faltered as fans felt alienated by increasingly outlandish storylines and a reliance on gimmicks to attract viewers.
Over the years, the “jumping the shark” episode came to symbolize the decline of “Happy Days” and birthed an American idiom. Today, we say something “jumps the shark” when it becomes so absurd it can no longer be taken seriously.
When we one day look back on the movement to “get money out of politics,” it will be embarrassingly easy to identify “jump the shark” moments. The difficulty will be in choosing precisely which moment this movement inevitably went off the rails.
Bernie Sanders lists “Getting Big Money Out of Politics” third on his presidential campaign website’s “Issues” page. Hillary Clinton promises to litmus-test Supreme Court nominees over Citizens United, push for tax financing all federal races, and impose a host of new compulsory disclosure laws on groups that speak about candidates and public policy.
Not to be outdone, Harvard University professor Larry Lessig has entered the presidential race to run a single-issue campaign devoted primarily to money in politics. If elected, Lessig promises to resign the presidency immediately after signing a single bill, the as-yet-unwritten “Citizen Equality Act of 2017.” Although only an outline of the plan is currently available, it appears to include many of the same facets as Clinton’s proposal, including government subsidies to campaign for Congress.
Advocating Speech Control
Putting such intense focus on an issue that voters hardly care about may seem bizarre, but it is also the logical endpoint of taking seriously the increasingly extreme campaign finance “reform” movement. I put “reform” in quotes for a reason. The coalition of politicians and activist groups that call themselves “reformers” are not merely pushing for good government, but a specific regime in which government funds candidates, strictly limits private individuals’ ability to contribute to groups that speak about politics, and forces citizen groups to report supporters’ private information in an online database. True reforms that would make it easier for individuals and groups to speak meet fierce opposition from these same groups, whom we might more accurately describe as advocates of political speech control.
The speech-control movement has grown in recent years, as evidenced by the truly radical proposals and tactics that gained notoriety over the past year. Last fall, 54 Senate Democrats voted to amend the U.S. Constitution to grant incumbent politicians near universal power to restrict political speech at their whim, despite strong opposition from the American Civil Liberties Union and other free-speech experts.
Contrary to the First Amendment’s clear instruction that “Congress shall make no law… abridging the freedom of speech,” the proposal would have exposed every penny raised and spent to say anything about any candidate to the risk of regulation or outright prohibition. Even advocates of greater campaign regulations admitted it was “entirely impossible to predict the impact of this amendment, even if ratified, because of the broad language in the amendment itself.” Who would gamble more than 200 years of the First Amendment’s success on such chaos? More than half of the U.S. Senate, unfortunately.
An Odd Way to Make Your Point
Then, there was the strange case of Doug Hughes. In April, Hughes, a postal worker from Ruskin, Florida, was arrested for piloting a gyrocopter through restricted airspace over Washington DC and landing on Capitol grounds. Post-9/11, Americans know to expect increased security in the nation’s capital, so why try something so dangerous? To “get money out of politics,” of course! Hughes took to the pages of The Washington Post to explain himself in an op-ed titled, “I flew a gyrocopter onto the Capitol Lawn to save our democracy.”
“Big money is a threat to our democracy just as security threats are,” Hughes wrote. Incredibly, rather than distance themselves from such reckless activism, the “reform” community praised Hughes for raising awareness of their crusade. Lessig “thanked” Hughes for “his service,” and PR firm ReThink Media offered him their assistance, pro bono.
Perhaps the strangest episode yet came in June, when Federal Election Commission (FEC) Chair Ann Ravel and her colleague on the commission, Ellen Weintraub, made the unprecedented decision to petition their own agency for more speech restrictions, saying “desperate times call for desperate measures.” Having failed to persuade their fellow commissioners to regulate more political speech, including speech on the Internet, the petition continued Ravel and Weintraub’s strategy to publicly embarrass the agency when they don’t get their way. Just a month earlier, they lashed out at their fellow commissioners in the press, with Ravel telling the New York Times the agency was “worse than dysfunctional.”
Ravel and Weintraub’s petition, however, did not address that dysfunction and the problems in our campaign finance regulatory regime. It was heavy on rhetoric, but light on policy detail. Commissioner Steven Walther, the FEC’s soft-spoken Independent, said, “I don’t think it’s a call for the kind of serious rulemaking that we should be doing.” Other critics of the petition included former White House counsel under President Obama Bob Bauer, who wrote that it left a “bitter taste” and was “surprising” in its lack of substance.
We’re Still Litigating Citizens United
These events form a disturbing and growing trend of government officials and activists going overboard to push greater government surveillance and control over political speech. Why?
The speech-control movement says its increasingly outlandish actions are a necessary response to the Supreme Court’s 2010 Citizens United decision, wherein the court issued the utterly unsurprising ruling that the First Amendment prohibits the government from regulating films that criticize political figures. (In another “jump the shark” moment, four dissenting justices on the High Court actually would have ruled that government could ban a documentary movie about a major political figure in an election year if, like every other movie you have ever seen, it was produced or distributed through a corporation.) In fact, wealthy individuals’ ability to spend their own resources funding political ads and supporting causes actually dates back to 1976’s Buckley v. Valeo decision, and ultimately the First Amendment.
Indeed, events in recent years have lent little credence to the notion that Citizens United spawned a crisis. Standing in stark contrast to media portrayals of money in politics, professor Jeff Milyo observed in 2013 that, “decades of social science research consistently reveal a far more limited role for campaign spending.” As a percentage of gross domestic product, the most expensive election in U.S. history was not 2014 or 2012, but 1896.
Don’t forget that in the only presidential election since Citizens United, the victorious candidate was the African-American Democrat, not the rich white Republican with a business background. It was after Citizens United, not before, when major legislative accomplishments of the Obama administration such as the Affordable Care Act and Dodd-Frank passed, and it was before there even was a Federal Election Campaign Act, not after, that Congress enacted the Civil Rights Act, the Voting Rights Act, and the legislation creating the Interstate Highway System.
A Manufactured ‘Crisis’
Yet, increasingly, many progressives believe these laws do not go far enough. Instead of recognizing that compromise is difficult in a republic with hundreds of millions of people, they blame “Big Money” for causing “gridlock.” One wonders if even Lessig would like the “Citizen Equality Act” once it has been written, debated, amended, and subjected to the standard rigors and compromises a healthy democracy imposes in the lawmaking process.
Lessig wants us to elect a president with no interest in governing beyond passing a single bill. America has gone through many times of turmoil without ever resorting to such extreme measures, from the Civil War to the Great Depression to World War II to the civil-rights movement. Does campaign finance regulation in 2015 really compare to any of those actual crises?
Of course not. Imagine how different life would be if we had lost World War II, or if we had not passed Social Security in the 1930s or the Civil Rights Act in the 1960s. A program to subsidize the campaigns of federal candidates simply does not compare in importance. In a country that elected presidents such as Coolidge, Eisenhower, and Kennedy with barely any campaign finance regulations, arguing that even more draconian rules are suddenly essential is nonsense.
Self-styled “reformers” have convinced themselves that their issue is the key to every issue, and that they alone stand in the way of oligarchy. Every movement for policy change has some extremists on the fringes, but in the movement to control political speech, the inmates appear to be running the asylum.
Proposing constitutional amendments that are dead on arrival, pretending to be a beleaguered citizen petitioning the government agency that you chair after failing to persuade your fellow commissioners, and urging presidents to sacrifice their administrations on the altar of campaign finance reform are not serious ideas. They are mere gestures; publicity stunts with a limited shelf life. Before too long, they stop being effective and start damaging your movement’s credibility.
Campaign finance “reformers” have jumped the shark. Is there anything serious left? And will politicians notice in time?