A Christian Idealist’s Guide to Citizens United (Part 4)

by Tom Wolpert on December 2, 2020

On July 24, September 26 and October 27, 2020, expressing my postmillennial idealism, I posted commentaries on the case decided by the U.S. Supreme Court in 2010, Citizens United v. Federal Election Commission, 558 U.S. 310, with further commentaries on related cases. Citizens United, its judicial antecedents and its progeny, most specifically deal with the regulation of election finance.  But the cases and the opinions of the Justices more broadly interact with self-government in our nation, in the real world. This is a continuation of those commentaries, addressing four cases which preceded the Citizens United decision in the years from 1996 to 1985.

If the cases are dated, the political and legal problems they represent are not. Christians are directed to something greater in our future than vague admonitions to piety. In Revelation ch. 19, Christ wins. Hand-wringing over the awful state of the world is not as effective as addressing the real problems of self-government, by a Christian, for Christians. And I heard a loud voice from the throne saying, “Look! God’s dwelling place is now among the people.” Rev. 21:3. We’re the people; let’s get on with it.

Colorado Republican Federal Campaign Committee v. Federal Election Commission (FEC), 518 U.S. 604 (1996). Justice Breyer delivered the opinion of the court, joined by Justices O’Connor and Souter. In 1986, The Colorado Republican Campaign Committee (the “Committee”) bought radio advertising attacking the likely Democratic candidate. The FEC charged that the Committee’s expenditures exceeded the dollar limits permitted by federal election finance law (the Federal Election Campaign Act of 1971, “FECA”). The bottom line of the court’s decision was that the First Amendment prohibited the FEC from imposing its expenditure limits on the Committee, because the expenditures were made independently, without coordination with any potential Republican candidate.

The Court’s decision in Colorado is correctly decided, but not particularly well-reasoned. In Colorado, the FEC was conducting itself in true bureaucratic fashion, focused on its own rules, not the underlying realities of political finance and advocacy. The Court engaged in nit-picking rule parsing of the relevant portions of election finance law to reach its conclusion. The premise that the Committee was genuinely independent of the possible (but as yet unselected) Republican candidate for the particular office in question was implausible. So the nit-picking analysis rather missed the point. Surely, when God dwells among his people, we will adopt simpler and more realistic political and judicial principles than these.

No court, not even a Christian court in a Christian community, should be empowered to dissolve a bureaucracy on its mere say-so; but any Christian court may spend some time exploring why the bureaucracy exists to begin with. Courts and judges not only interpret law, they provide a necessary independent viewpoint on the acts of legislators and officials. There is currently some discussion about installing Supreme Court Justices with 18-year terms, as opposed to lifetime appointments. The advantage of a lifetime appointment is the greater independence that the judges enjoy – the benefit of that outweighs the frustrations of various voting blocs or political parties at long terms in office without any realistic possibility of recall (which admittedly, does present concerns as well). Even an ideal Christian community is benefited by independent judges.

In Colorado, Justice Breyer begins by rehearsing some history about FECA to remind us that FECA was intended to remedy the appearance of a ‘corrupt’ political process (one in which large contributions seem to buy legislative votes). FECA was intended to level the electoral playing field by reducing campaign costs. Id. at 609. The business of ‘leveling’ has been and remains highly controversial. Conversation about leveling typically ignores fundamental issues: who gets to decide what or what is not ‘level’ and who gets to do the ‘levelling.’

Like the intimidating image in the Wizard of Oz who advised Dorothy to pay no attention to that man behind the curtain, our first and most pressing question is to identify who is enacting, enforcing and adjudicating any set of campaign finance laws. If the ‘who’ – the entire group of people who enact, enforce and adjudicate such laws – is essentially hostile to our Christian faith, then we need to know that and act accordingly. Christians have enemies in our country and in every country; it would be unrealistic and unbiblical to pretend otherwise. The Book of Revelation provides guidance on how to conduct ourselves when we are under persecution or engaged in conflict, as Revelation provides guidance about how to act when we are not.

There is discussion by Justice Breyer about what constitutes a “coordinated” expenditure, a distinction that only makes a difference in the narrow world of FEC enforcement. It’s not a useful discussion. This is all politics, no matter how its sliced or diced – political contributions, political expenditures, political committees, political candidates, they’re all functionally coordinated. I have a low appetite for conspiracies, but a healthy respect for the uniformity of people’s outlooks which causes them to act in coordination without the benefit of some secret central committee directing all manner of nefarious activities.

Even in our ideal society, political parties are important. Justice Breyer addressed the topic of political parties generally (with better focus than when he parsed the word ‘coordinated’):

A political party’s independent expression not only reflects its members’ views about the philosophical and governmental matters that bind them together, it also seeks to convince others to join those members in a practical democratic task, the task of creating a government that voters can instruct and hold responsible for subsequent success or failure.” Id. at 615-616.

That kind of coordination – the kind that permits a government to be created, responsive to voters – is a coordination we cannot dispense with. We tolerate the major political parties, no matter how bitterly they engage in confrontation and bickering with each other, no matter how insulting or depressing they can become. We do so because there is a type of political coordination that we must have to self-govern. When new officers are selected for a new political administration, they are not selected by picking random names from a hat. If that were the case, such individuals would have no responsibility to voters. Christian idealism does not reject what is necessary to our conduct as a self-governing society.

When Christ returns in person, perhaps we will jettison all that, but there may be an age or many ages before that happens. There is an expression I have heard, that Christ did not come to take sides, but to take over – granted, that is true, but improving our lives and our society has to take place in steps. The Kingdom of God is not the product of political parties or activities, but I would not see self-government thrown into the Abyss.

Justice Kennedy, joined by Chief Justice Rehnquist and Justice Scalia concurring in part and dissenting in part, also made observations about political parties. Kennedy’s points are obvious but bear restating, even for a visionary. Political parties exist to advance their members’ shared political beliefs. A party accomplishes this by identifying people who agree and limiting the party to those who do agree. Political parties have their own traditions and principles which transcend the interest of individual candidates. Parties need candidates and candidates need political parties Id. at 619.

It is difficult for anyone who dreams of an ideal Christian society to contemplate competing and adversarial political parties. If I were to take an unscientific poll of postmillennial Christians, I daresay the majority view would be that in the millennium, that ideal state that will exist before Christ’s return, there will be no political parties at all, and good riddance. The idea doesn’t appear consistent with the unity sought for in the New Testament.

Political parties are associated with partisan animosity, hypocrisy, friction and malignant speech. In our society malignant speech is magnified by the media. This nation’s political media, in loose coordination with political parties, have developed an economic model (worthy of Babylon’s) based on generating advertising revenue derived from attracting large audiences for insulting or hysterical speech – the more disrespectful, divisive, extreme, shocking and accusatory, the better. Those who hold political office are entitled to the respect required by Romans Ch. 13. There is no exception to the Apostle Paul’s directive for any particular official. Walk away, Christian, walk away, from that which is vicious. There is handwriting on the wall for that conduct, as well.

But in my ideal Christian community, political parties exist. There is room for hope, room for improvement. Political parties exist because they have to; they exist even in a visionary ideal because Christian idealism may not be deferred until something sudden and monumental happens to human nature. The work of the Holy Spirit is organic and gradual in individuals and in societies. As we travel to the Holy City by means of the Spirit we become holy. We will get to the place which, by grace, we are.

The conduct of the political parties could be animated by mutual respect and common purpose – instead of angry accusations, an intelligent exploration of differing views. Intelligent explorations of differences require common ground, a common fabric of underlying belief, a common background of acceptable conduct. There is no substitute for a broad community fabric of faith, undergirded by recognized scriptural standards, albeit expressed in different communions. That would not guarantee an ideal community, but at least we would be pointed in the right direction. There is nothing about that vision incompatible with Revelation’s Holy City.

The existence of political parties is one of the fundamental differences between self-government and a theocracy. Theocracies are a problem; not just because the ‘woke left’ sees them threatening around every corner – but because they represent something other than God’s dwelling place being with the people. I accept spiritual leadership in worship; I accept spiritual leadership in theology. But when it comes to government, politics and law, to paraphrase the Apostle Paul, we think we too have the Spirit of God. Hence,

We Christians Request: That political parties do engage as part of the Christian community, essential to self-government. They reflect differing views, they help inform and persuade others. Even in sharp disagreement, they provide an organization to assume the levers of government, to identify and support candidates. Winning elections has responsibilities, winning elections has limits. We request that our political parties retain that essential sense that we in our community are Christians, that disagreements are not usually heresy. We do not sit in fruitless opposition but move together toward a holy goal, expressed in multiple ways, including our political conduct. We request that the adversaries jointly proclaim and remember our Lord’s death, until he comes. 1st Cor. 11:26.

We Christians Expect: That when the conduct of political parties becomes too adversarial, too angry, too bitter, that our community will sound a warning and issue an exhortation. If the Word of the Lord subdues nations, it can subdue our political parties. Those who belong to Christ are not at war with each other and we can never truly be at war with each other. What’s the point of killing someone, metaphorically, politically, legally, financially or otherwise, who has eternal life? After the election is over, win or lose, in one of the following communion services we will be spiritually present to break bread together with our adversaries. We expect to hear that from time to time, as needed. We expect to celebrate that instruction from Christ without faultfinding, remembering not only him, but remembering those with whom we disagree. The point cannot be emphasized enough, because it is exactly what the world is incapable of doing sincerely. The world sees parceled-out death as its inescapable end. Our conclusion is life.

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). This case was reversed and superseded by Citizens United, so it would appear to have historical interest only. But the arguments and opinions speak to issues for which idealism retains an interest. Justice Marshall delivered the opinion of the court. Michigan had a statute which prohibited corporations from using corporate treasury funds for independent expenditures for or against any candidate running for state office. The Michigan Chamber of Commerce (the Chamber) was a nonprofit corporation. The Austin court upheld the Michigan election finance law against the Chamber’s First Amendment challenge. Although generally, state control of its own election finance regime is desirable, chasing around the corporate form to particularly regulate it is pointless. The case was wrongly decided and the Citizens United court was correct in reversing it.

There are certainly problems with vast accumulations of wealth. (Woe! Woe, O great city, where all who had ships on the sea became rich through her wealth!). But the Michigan Chamber of Commerce did not remotely present a ‘Babylonian’ danger to the integrity of electoral processes in Michigan. A recurring theme in the corporation election finance and FEC Supreme Court cases is that the judicial rhetoric in favor of regulation repeatedly harps on vast accumulations of wealth and the extraordinary danger to democracy such represents, as if the great titans of financial power were before the court – but the actual court case, upon which this avalanche of rhetoric falls, concerns some entity like a chamber of commerce, which cannot even qualify as a bit player in the world of corporate titans.

The Chamber cogently argued that it was a violation of equal protection to allow exemptions for media corporations. The election finance regulatory regime of Michigan, like the federal election finance regulatory regime, exempted media corporations from the prohibitions of the relevant election finance restrictions. The justification offered by Justice Marshall for making this distinction between media corporations and other corporations is not particularly compelling. Marshall argues that media corporations have a “unique societal role” that justifies the distinction. Id. at 668.

Justice Marshall’s reasoning is essentially circular – media corporations are different and unique, not like those other bad corporations whose political activities and communications might corrupt the political process, because, well, the media corporations have a unique societal role and their activities and communications are groovy and cool – so there! The protective phrase of the 1st Amendment, “freedom of the press” cleanses what otherwise would be bad corporate media behavior corrupting the political process. Justice Marshall would have us assume such bad behavior exists with all nonmedia corporations. The dissolution of 1st Amendment protections for those evil, corrupting nonmedia corporations is justified, but if you put out a newspaper or cable news outlet, Constitutional pixie dust falls from the sky to make you kosher. How you would seriously apply Marshall’s reasoning to the Disney Corporation, parent to ABC news, or Michael Bloomberg, whose media corporation is vast in influence and wealth, is anybody’s guess.

Justice Scalia reaches the central problem in his blunt, inimitable style: “government cannot be trusted to assure, through censorship, the “fairness” of political debate.” Id. at 679. This raises the question, familiar in our political debate, whether corporations are the bad guy we have to keep an eye on, or is government the bad guy who needs constant watching. The deeper issue is trust – whom we trust, whom we don’t. (The concern is not new – these words are trustworthy and true, said the Apostle John.)

Justice Scalia points out that the majority opinion in Austin justifies the idea that direct restriction upon speech is narrowly tailored (meaning, it passes Constitutional scrutiny) “if it extends to speech that has the mere potential for producing social harm.” Id. at 689. Scalia invokes Justice Oliver Wendell Holmes and examples of Supreme Court opinions endorsing free speech and protecting and extending First Amendment rights to demonstrate the unwisdom of this approach – finding that bad potential standing alone was enough of a reason to censor speech. In his lengthy list of cases and examples, Scalia identifies one such example, Nebraska Press Assn. v. Stuart, 427 U.S. 539, which protected the rights of the press to publish information that had the potential for jeopardizing a criminal defendant’s right to a fair trial.

Getting accurate, timely news about a highly publicized trial is fundamental to democracy. This issue came back to light again recently, in Australia, having to do with a contrived (or at least highly improbable) accusation of child abuse against Australian Catholic Cardinal George Pell. The press, Australian or otherwise, was precluded from publishing almost anything of substance about the case. Cardinal Pell was convicted after two trials, was sentenced and served time. He was ultimately released after his conviction was reversed on appeal by the highest Australian court of appeals, but it took years. The theory in Australia was that a press blackout, enforced by judicial order and punishable as a criminal offense, protected the right of the defendant to a fair trial. In practice, what that meant was that the obvious factual improbabilities in the accusations against Cardinal Pell could not be broadly and conspicuously presented to the public, He was accused of doing secretive things to children in a well-traveled area of the church immediately after a large well-attended church service, when privacy would have been impossible, rather like being accused of committing a secret bank robbery in the middle of Penn Station at noon. The hostility of the Australian media to the Catholic Church made them blind and indifferent to facts, even when they did have them. On the other hand, the abuses that clearly occurred with some Cardinals were not publicized (like Cardinal McCarrick in the U.S.), when they should have been, which the Catholic Church is painfully confronting now.

There always seems to be a theory by which someone, somewhere is entitled to narrow and suppress freedom of speech. Current examples, originating through social media political censorship and the censorship of speech on the campuses of colleges and universities, are too numerous to be recapitulated here. My point being that Justice Scalia got it right, and Justices Marshall, Stevens and Brennan got it wrong. The liberal justices were chasing down corporations to keep them under control, but the problem was the liberal justices themselves. Hence,

We Christians Request: That the benefit of the doubt be given to freedom of speech. The first institution in whom we invest our trust is the church, understood to be the collection of all the churches. Within in our community, we request that the churches think long and hard about what speech they think ought to be censored, and why; which does not diminish their obligation and right to present correct doctrine. Legislative bodies, elected officials, courts, judges, profit or nonprofit corporations, media outlets, political parties, candidates or political action committees, religious leaders, obscure blog posters – are all of them to be trusted, or any of them? We request all Christians take seriously where trust is to be lodged. It may be parked forever with God and the Lamb, but everyone else gets the benefit of love, but not the blindness of partiality.

We Christians Expect: That each participant in our church life and in our political and social lives understands and joins in our purpose to foster trust. We cannot get to the holy city without it. We expect that all believers will understand that they, and we, are not being abused or disrespected if asked to give an accounting and explanation of our or their conduct or words. We expect that our brothers and sisters in Christ will use their free speech rights to advance trust. We expect that we, and all Christians, are capable of sorting out the wheat from the chaff of anyone’s communications or speech. Methodologies of control and suppression are not necessary and do more harm than good.

Federal Election Commission v. Massachusetts Citizens for Life, Inc. 479 U.S. 238 (1986). This important decision, known as MCFL, was rightly decided. Its rationale paved the way for Citizens United, which 24 years later extended similar reasoning about corporations and their 1st Amendment rights beyond the more narrowly defined exceptions that this case carves out. Justice Brennan delivered the opinion of the court, exempting on Constitutional grounds the non-profit MCFL from the prohibitions of corporate election finance law. MCFL had produced a newsletter urging to readers to vote pro-life in an upcoming primary election. The FEC had brought an enforcement action against it, because MCFL had used corporate funds.

In our current heated political environment, it bears noting that it was a very liberal justice, Brennan, who presented the rationale for freedom of speech for a pro-life organization. At the University of California, Berkeley campus, in 1964 they rioted for freedom of speech. Today books are burned there because their ideas are politically incorrect. When you look at what the woke left and cancel culture are doing today (encouraged by the media, their professors and administrators) on college campuses and in intellectual centers, what can anyone say? As King David lamented, speaking of Saul and Jonathon, defeated by the Philistines, ‘how the mighty have fallen.’ 2nd Sam. 1:19.

When the world goes mad, it is our business as Christians to value and advance those freedoms which were often obtained at great cost, at soldier’s pay, at the price of life and blood. Not only for the nation’s sake, but for our sake. Our vision withers not under outside repression, but only if we burn our own books. Our ideal society is intellectually dynamic; it can stand controversy and maintain its warm social bonds because those social bonds are built on Christ, on a common faith and shared vision. We can love and disagree.

When we separate, where that is necessary to remain faithful, we remember that even apostate Israel heard many biblical promises of redemption. The churches are dividing today over LGBT issues; I left the Lutheran church and joined an Evangelical church over that issue. If a church or a pastor cannot read the 1st Chapter of Romans, I can. It’s not that hard to understand. End runs around plain passages of scripture invoke not only issues of theology, but trust. Nevertheless, the Book of Isaiah is a monument to God’s determination to recapture the love of those whose faith had grown cold. Even a Babylonian captivity is not forever.

In MCFL, Justice Brennan found three features of the nonprofit MCFL that warranted its exemption from the reaches of federal election law. If we are seeking out exceptions to a general rule (the validity of which we accept), his reasoning is fair enough. The organization was formed for the express purpose of promoting political ideas, not business activities. It had no shareholders who might raise claims on assets or earnings. It did not accept contributions from for-profit corporations or labor unions. As a result, Brennan wrote, “this prevents such corporations from serving as conduits for the type of direct spending that creates a threat to the political marketplace.” Id. at 264.

The discussion over whether direct spending by corporations, even for-profit corporations, creates a ‘threat’ to the ‘political marketplace’ would be, 24 years later, very much in view in the vehement debate over the Citizens United decision. But as for a ‘conduit’ for money, see the discussion below on the amounts of money dedicated to the 2020 election cycle. The money pipeline of 1986 had become, by 2020, the mighty Mississippi.

Further, Brennan explained “where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand.” Id. at 265. Hmmm – what might that mean? Therein lies the problem. The current theory for the censorship of speech is that if certain speech is ‘hate speech’ then it is, indeed, the ‘particular problem at hand.’ The right and power to censor or cancel hate speech on social media purportedly justifies censorship, suppression or cancellation.

Hate speech bears a striking resemblance to any speech that a particular group of powerful hearers dislike and resent. Social media is privately owned, but then, so are telephone land lines. Imagine if, in the 1950s, Bell Telephone hired people to listen to private telephone conversations on its telephone landlines to detect any note of Communistic sympathies. I imagine, if Bell Telephone had done that, it could have given its employees, hired to eavesdrop, a pleasant, positive sounding name, like ‘social fairness coordinators’. Either because it is deemed hate speech, and/or because the media is privately owned, the argument is that such speech may not warrant or enjoy Constitutional protection. When John the Baptist called his audience “a brood of vipers” – was that hate speech? Some questions are too stark to concern themselves with Constitutional protection or social approval. O, America, who told you to flee from the wrath to come?

Justice Rehnquist, that arch-conservative, dissented from the majority decision in MCFL, joined by a diverse group of Justices, White, Blackmun and Stevens. Rehnquist endorsed the idea that the special characteristics of the corporate structure require “particularly careful regulation.” Id. at 266. He was in favor of sustaining the regulatory regime – one wonders whether a substantial part of the reason for his approval of regulation was because Justice Brennan was against it. Individual justices of the liberal wing and conservative wing of the court appeared to be jockeying for position, as in a game of jurisprudential musical chairs.

It raises the rather depressing question: is any of this principled, or is it all just a game of adversarial posturing? – if you say up, I’ll say down, if you say federal regulation, I’ll say Constitutional protection. As we speak, national leaders continue the game of adversarial maneuvering without worrying much about irksome intellectual principles. Today, are the FBI good guys, or bad guys? In my lifetime, political parties have completely changed sides on that issue – suggesting that neither side really cares about FBI anything, nearly as much as scoring political points. Only a pawn in their game, as a talented folk singer might warble.

Christian idealism generally has a positive outlook; it is not a zero-sum game. Christ is Lord, he is risen indeed; that is the point of our faith. Our faith is a benefit that may be extended to everyone; it doesn’t wear out with use, it gets better with use. In Christianity there does not have to be a set of winners and losers. Even in the midst of serious conflict, our principles have to extend further than empty, abrasive factionalism.

MCFL is a decision that affirms free speech rights. So far, so good, but somehow, one would like to find more enduring principles than are encountered when the players choose sides at a pickup basketball game. The principles or characteristics of the nonprofit MCFL that Justice Brennan announces, to justify the majority decision, are essentially happenstance and ad hoc. This particular entity doesn’t look like a corporate bad guy, it looks like an organization that raises money with bake sales and raffles, so it’s okay, they get a pass on federal election finance law. So says the United States Supreme Court in 1986 about MCFL. As a result, the MCFL decision becomes a kind of ‘get out of jail free’ card from the game Monopoly – the corporate exception there to justify the corporate election finance regulatory rule.

That is reasoning one expects from a jury hearing a typical civil lawsuit. Jurors are laypeople, briefly assembled to decide one particular case between a few particular parties. Taking legal positions based on the organizational structure of one particular entity doesn’t go far on a jurisprudential road. Carving out piecemeal exceptions is a path to a well-known end, in which the accumulated exceptions swallow the rule. In subsequent election finance law cases decided by the Supreme Court, references to the MCFL exception became commonplace. Taking judicial positions based on specifics so narrowly drawn that the next discussion bears little relation to the last discussion isn’t useful. Hence,

We Christians Request: That where we differ as Christians, we try to articulate the differences in terms of enduring principles, rather than personalities and sides. We love one another based on the principles of our faith and our confessions. We expect that criticism of opponents will be more than fault-finding of a particular person or organization or church. We are a community on a journey, not feudal lords ensconced in various castles. We request our leaders look to develop principles that will not be discarded when the political winds change direction.

We Christians Expect: That we separate ourselves from factional dispute where the factions appear to exist merely to be factions. We expect to assert principles from the Word of God that are unchanging, even if our understanding of them necessarily changes as it grows. We expect that we will listen to speech from Christians with whom we disagree, because they are Christians. They may present their thoughts under the wrong label but have the right argument. We expect that conflict, even where unavoidable, will teach us something and that its resolution will get us somewhere. We do not expect to compromise our principles merely for the sake of compromise.

Federal Election Commission v. National Conservative Political Action Committee (NCPAC), 470 U.S. 480 (1985). Before talking about this case, it’s worthwhile to review what the spending was for the recent election cycle of 2020. My source for most of this information is a post on the Opensecrets.org, website (2020 Election to Cost $14 Billion, Blowing Away Spending Records), dated October 28, 2020. The final numbers must be higher, but these will get us in the right ballpark.

As noted, total electoral spending was about $14 billion. By way of irreverent comparison, the Mississippi River holds about five million gallons of water, so think of each gallon of water in the Mississippi as equal to about $2,800 of election spending. The Presidential election alone saw spending of about $6.6 billion. Joe Biden raised $1 billion from donors. Donald Trump raised about $600 million from donors. In the month of October, 2020, alone, spending by super PACs and other groups was about $1.2 billion. Over the election cycle, Democrats raised about $1.7 billion from small donors, Republicans raised about $1 billion from small donors. About 22% of money raised in the election cycle came from small donors, giving $200 or less. Traditional PACs accounted for 5% of political giving. The PAC contribution limit of $5,000 was a barrier, so the money flowed like water through other channels. Groups that fall into other categories, such as Super PACs, political parties and “dark money” groups, contributed about $2.6 billion. Michael Bloomberg spent about $1 billion of his own money on his own political campaign. It would be possible to recite yet more statistics about political spending, but you get the point.

In NCPAC, in this case decided in 1985, what were they fighting over? Justice Rehnquist will explain:

The Presidential Election Campaign Fund Act (Fund Act), 26 U.S. C. § 9001 et seq., offers the Presidential candidates of major political parties the option of receiving public financing for their general election campaigns. If a Presidential candidate elects public financing, § 9012(f) makes it a criminal offense for independent ‘political committees,’ such as appellees National Conservative Political Action Committee (NCPAC) and Fund For a Conservative Majority (FCM), to expend more than $1,000 to further that candidate’s election.

Id. at 482. [Emphasis supplied.] The discrepancy in the scale of the numbers between 1985 and 2020 is staggering. It’s hard to take seriously a discussion about political financing that wants to criminalize expenditures of over $1,000, from anybody, to anybody, under any regulatory scheme. On the internet today, as I write, a Louis Vuitton Carmel Black Mahina bag costs $4,550 – more than four times that amount. This year $1000 is about the price of a new iphone. Even if someone wanted to impose federal campaign finance restrictions, price movements acting much more quickly than legislatures can typically act leads us to absurd results, another invitation to hypocrisy and evasion in the realm of campaign financing.

The particular regulatory regime in this instance became operative if a Presidential candidate elects public financing. 2008 was the last year any candidate for President accepted public funds; John McCain did so, Barack Obama did not. The system of federal public financing has been broken for years, accompanied by the usual partisan finger-pointing and fault-finding. In any event, in this case, thankfully, the court concluded that the limitations on giving were an unconstitutional abridgment of 1st Amendment rights.

Underneath the rationale for much of this regulation is a plea, heartrending indeed, that if somehow, someway, we could control the amount of money people have to spend, for this, that or the other thing, then we could make elections more fair, or political opportunities more fair, or life more fair. The people who issue this plea, overtly or covertly, never see themselves as the problem – never see that the rest of us have grave concerns about putting them in charge as political-economic czars, to make ‘things’ (whatever things they think needs fixing at a particular time) fair.

It’s worth stopping to draw a sharp distinction between Quaker activity against slavery in 1790, previously discussed, and the various schemes of election finance regulation. The Quakers did not see themselves as assuming a role of economic-political position or power; they wanted slavery ended. After that, I daresay they were ready to resume their own private lives. As soon as controlling money, its direction and flow gets involved, then it’s necessary to have some ‘deciders’ – who get to decide how much money, from whom, to whom, with what sanctions for non-compliance, etc.

The current discussion over reparations for slavery is a good example. Apart from its many questionable assumptions (giving money to someone today for bad acts 150 years old fixes something) – apart from the problem of determining from where the money for reparations comes (probably from the deplorables who voted for Trumpthey need to be punished), and then to whom it goes (governmental transfers supposedly helping the people who receive them, you know, by encouraging their initiative and self-reliance), and how much (lots, always lots, because anything less would be inadequate) – underneath those issues is that perennial issue of who gets to be a decider to implement this particular remedy for past evil.

Needless to say, the defenders of the theory of reparations want commissions to do so (commissions excel at finding victims of societal injustice). One may confidently anticipate the viewpoints and political associations of those who will populate the seats of power of such commissions. Concerns about the power of government to extract money from some citizens for the benefit of other citizens have a long history (no taxation without . . . something, give me a minute, it’ll come to me). The end result is animosity and resentment – which is not an accidental byproduct of the theory of reparations, that is the goal, that is what its proponents intend and expect. The issue is decider control. Animosity and resentment are tools to achieve that control. The Christian community should regard such arguments with extraordinary caution.

In NCPAC, Justice White dissented, along with Justice Brennan (who defended the free speech rights of a nonprofit in Massachusetts Citizens for Life) and Justice Marshall. Justice White thought the court was dismembering congressional efforts to regulate campaign finance. Id. at 507. His view was that the “First Amendment protects the right to speak, not to spend, and limitations on the amount of money that can be spent are not the same as restrictions on speaking.” Id. at 508. He opined that large-scale expenditures might be a significant threat to the integrity and fairness of the electoral process.

If Justice White were correct, it is ironic that the massive expenditures in 2020 (orders of magnitude greater than in 1985) have not led anyone to suggest that the integrity and fairness of the electoral process were jeopardized by the amount of money spent. There is indeed controversy and acrimony over the integrity and fairness of the electoral process in 2020, but the disputes don’t concern money. Justice White noted that in the 1984 general election campaign, each major party candidate received $40.4 million in public funds, and each national committee was permitted to spend another $6.9 million on each candidate’s behalf. Id. at 518, n. 13. If Justice White were with us here in 2020 to see the current tsunami of political money, I daresay he would be at risk of fainting. Justice Marshall added a dissent which found that limitations on independent expenditures were justified by the “congressional interests in promoting the reality and appearance of equal access to the political arena.” Id. at 521.

Christian idealism may be innocent and pure, but it cannot succeed by being naive. These federal campaign finance regulatory schemes were doomed then and will be doomed in the future. At the federal level, money is more powerful than the bureaucratic enactments and enforcement efforts designed to control money. The people (sitting officials) enacting such controlling regimes are part of the problem, not the solution. Today oceans of dollars run effortlessly around such feeble controls. Our Christian idealism does not reside in brittle, unworkable regulatory regimes.

The command ‘don’t spend your money’ is futile. First, the rich often control or heavily influence the societal resources which issue such commands. They got rich by being quite adept at navigating the shoals of this world. Second, such a command runs afoul of the 1st Amendment and associated Constitutional rights which are not easily subverted. Third, power is at issue; governmental commands about election financing run afoul of the problem of who is in command, since the commanders and the commandees are similarly-situated groups. What they really fight over is not election finance regulations or reforms; what they really fight over is power.

Our ideal world, our visionary Christian political system, has to be constructed in a different way. We recognize the fierce, competitive passions entailed in elections to temporal power. Like parents watching their adult children steer through the passages of young adulthood, we watch, we advise, we are beyond the point where we can compel so we occasionally exhort, we pray, we give, we lend, we warn, we listen, we celebrate, we console, we welcome. All of that together, and nothing less, qualifies to be called love. That’s a great deal of attention to lavish on our public officials – after all, we have our own lives to live. Christian political idealism requires a commitment of time and serious attention to our candidates and officials. But if we were to do that, we could do better.

Regulatory schemes will not make untrustworthy people into trustworthy ones. The passage of time has made 1985’s election finance regulatory issues, discussed in NCPAC, irrelevant almost to the point of absurdity. Ambition, money and power cannot be done away with; but we as Christians can invoke those powers we have – the power to speak, the power to witness, the power to assemble and proclaim as a community. Ultimately, we get the power to vote. Those powers are often exercised through the churches or under the recommendation of our spiritual leaders, to channel fierce passions into productive ends.


We Christians Request: Trustworthy candidates for elected office. Schemes of election finance control are to be avoided in favor of avenues of trust, where there is no prefabricated formula for trust. We request that donors be trustworthy. We request that political candidates handle money given by donors in a trustworthy manner. We acknowledge that the designation or assessment of being ‘trustworthy’ is intertwined with the content of contested elections themselves. Trust is a subjective word, dependent in part on the eye of the beholder. Some candidates are trustworthy because of their personal characteristics. Some candidates are trustworthy because of their commitment to certain issues. Some demonstrate fidelity to a certain cause or viewpoint, or to a certain segment of the electorate. We request that Christian candidates, officials and organizations address the issue of their trustworthiness – and we trust we will make appropriate evaluations from there. Trustworthy is a word we cannot do without, and cannot nail down.

We Christians Expect: That ambition for power requires attention. We expect that the evaluations and assessments we make of candidates, of officials, of donor organizations, will be done soberly, fairly, realistically. We expect that if the candidates, elected officials or donors forget that we as a community have larger purposes and larger goals, we will remind them. The churches are charged with the task of reminding us how to act. We do not expect mechanical formulas, including partisan talking points or legal regimes, to solve the underlying problems of human conduct in the exercise of ambition and power. We do expect that the churches will act to speak to the issues, to monitor the participants, to refresh our recollection as to our goals. We expect that by faith we will reside in God’s love and grace and have access to His wisdom.

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