Chapter Five -- Part A Application and Implications of this Constitutional Theory |
It is obvious that the Framers thought of Congress as the dominant branch, or at least the first among equals, of the three independent branches of the Federal government. In the approximately 4,100 words of the unamended Constitution, about 2,300 are devoted to Congress, compared to about 950 for the Executive and about 400 for the Judiciary. [1] The President is commander in chief of the armed forces, but only Congress has the Constitutional power to declare war. The President shares all appointive and treaty making power with the Senate. Regarding legislation, the President can give advice and recommendations, and can veto, but Congress must initiate all legislation. It seems clear that the intended Constitutional relationship between the Congress and the executive administration is that the executive branch serves under the President’s direction given by the Constitution, to "...take Care that the Laws be faithfully executed,..." Congress, by law, decides what the Federal government will do. The Constitutional task of the executive is to faithfully carry out the provisions of the Laws passed by Congress.
It is inevitable that in today’s America the President and the executive branch has assumed a larger role than was contemplated in the Constitution. The most extreme example of this is national defense, where the President has power to use the armed forces immediately in the event of a nuclear attack. Our Constitution has accommodated even this change. The increase in the size and complexity of the Federal government has resulted in the assignment of significant discretion to executive branch departments to provide the regulations that flesh out the effect of Congressional legislation. The ability of the President to communicate to the entire nation using mass media has greatly increased the power of the executive to shape and drive the legislative agenda.
In the face of these changes, can we maintain the intended Constitutional balance between the President and Congress? That is one recurring question of this chapter. A second recurring question will be: how can Corporate and special economic interests be prevented from dominating the Federal Government? A third question is: how can the sovereignty of the United States be preserved, and specifically our ability to act in the world on moral grounds?
Special Interest Money, Congress, and the Presidency: Introduction
As Gov. Morris said at the Convention: "The Legislature will continually seek to aggrandize & perpetuate themselves... [T]he Great & the wealthy... in the course of things will necessarily compose the Legislative body." [2] His fear was that special interest domination would be through Congress, and a strong Presidency was needed to check the power of the wealthy. To understand the implications and consequences of the thesis of this book, we need to consider what forces and factors shape and control the decisions of both the Executive and the Legislative branches of our government. Therefore, we need to take a detailed look at the current impact of special interest money, on both Congress and the Presidency. This will be considered in the next three sections. Corporate and special interest influence goes beyond campaign contributions, to various ways in which special interest money personally benefits both current and former Members of Congress and Congressional staff. Regarding the effect of special interest influence, I recommend the books by Charles Lewis and the Center for Public Integrity (see the Bibliography, p 189-90). My impression is that these books are highly critical of the status quo across the board, but even handed.
Special Interest Money: Today’s status quo and the history leading up to it
The 1960 Presidential election was the first where television, specifically the televised debates, was a decisive factor. In 1968 the modern era of TV campaign commercials began in earnest, and with it, the cost of political campaigns skyrocketed. This was probably most visible in Presidential elections, but it may have had a greater impact on U.S. House races, especially in big cities. In big city districts, a campaign that advertised on TV had to pay for advertising to voters whether they were in the district or not.
In Chapter One we looked briefly at the history of campaign finance reform after the Watergate scandal and up to the 1996 Presidential election. To recap this history, campaign finance reform was one of the major consequences of Watergate. A reform bill was enacted within weeks of President Nixon’s resignation. The law established full public financing of Presidential elections after the primaries, along with Congressional campaign limits of $2,000 per individual, once during the primary and once during the general election campaign. PACs could donate up to $5,000 to a campaign. In the 1980’s Corporations and individuals were permitted to make unlimited contributions of so-called "soft money" to political parties, for party building activities like get-out-the-vote drives. Soft money was not to be used directly to support a Presidential campaign. This would violate the spending caps required by law for Presidential campaigns.
As we saw in Chapter One, the Clinton 1996 campaign totally disregarded and circumvented these restrictions. President Clinton apparently personally directed the use of much of the "soft money", and was involved in an extensive fund raising operation including over 100 White House coffees that were directly linked to $26.4 million contributed to the Democratic Party. [3] Partly as a result of this, "in 1995-96 the two parties raised $262 million in soft money — three times the 1991-92 total...In 1995-96, twenty-nine organizations spent $135 million to $150 million on ‘issue advocacy’ advertising in the Presidential and Congressional elections; in 1997-98, seventy-seven groups spent roughly $300 million". [4] Regarding total spending: "The same 535 Members of Congress, two political parties, and presidential candidates who raised $2 billion in 1992 and $2.4 billion in 1996 are well on their way to amassing more than $3 billion in [the 2000] election cycle". [5] Corporations can give unlimited amounts of soft money.
Special Interest Money and the Congress
In spite of the 1974 law, in recent years there has been an across the board co-opting of all Congressional incumbents, of both parties, by special interest money. Sectors of the economy such as Health Care, Trial Lawyers, the Oil Industry, Big Tobacco, and many other interest groups, organize and target their contributions to individual members of Congress. Contributions are made based partly on shared general principles. However, evidence suggests PAC’s also consider the committee assignment and power of a Member of Congress, and the willingness of a Member of Congress to accommodate a specific industry’s interests. The playing field is tilted towards incumbents by Corporate and special interests in a number of ways, including the following:
1) PAC’s can and do make contributions to Congressional campaigns.
2) Leaders of Congress can form PAC's and distribute campaign contributions to other Members.
3) According to a 1996 Supreme Court ruling, "political parties may spend unlimited amounts on behalf of their own candidates." [6]
4) Organizations such as labor unions, or the National Rifle Association, can help campaigns with activities such as phone banks and passing out voter guides. [7]
5) Many perks and benefits such as all expenses paid trips all over the world, are provided to Members of Congress and staff, by both Corporations and various other organizations that appear to be economically controlled by Corporations.
6) After careers in Congress or on Congressional staffs, many people are highly compensated as lobbyists, often lobbing their former colleagues after a one year waiting period expires on such activity.
7) Individual campaign contributions can be made, of up to $2,000 per election cycle, $1,000 for the primary and $1,000 for the general election. One key corporate link to be aware of here is that these individual contributions are sometimes "bundled". "Bundling" means that someone organizes a group of checks of up to $1,000 each, that are all contributed to the same campaign. The Member of Congress can be assumed to have access to information about both the total dollar amount of the bundle, and the economic interest associated with it. Bundling is not illegal, and the practice is widespread. [8] It is illegal for someone at a Corporation to order employees to make a contribution to a political campaign. However, consider that individual Federal political campaign contributions are publicly reported. The practice of bundling makes it easy for the top management of a Corporation, or any interest group, to simply keep track of who among the employees of a Corporation is making what specific contributions to what specific campaigns. People such as upper-middle management, partners in law firms, and so forth, are well compensated. In many organizations it is probably tacitly understood that people in the higher levels of the organization are expected to contribute part of their compensation to campaigns that are aligned with the interests of their organization. In short, bundling is a way for money to be directed, legally, from Corporations and organizations to Federal Congressional campaigns, and to be identified with a specific economic interest, company, or industry. Regarding public reporting, "[i]n 1995-96 ... three-fourths of the Members of Congress failed to comply with the requirement to list the occupations and employers of their campaign contributions". [9] This will be looked at further in the section on Presidential campaigns.
Regarding Corporate and special interest attribution of "private" contributions, first consider that "[o]nly one-fourth of one percent [of the American people] gave $200 or more to candidates for federal office." [10] U.S. News and World Report May 12, 1997 reports on how information about these contributions is processed. "Minnesota Rep. Bill Luther agreed to let U.S. News observe him perform the money chase...While Luther works the phones at the [Democratic Congressional Campaign Committee], he keeps beside him a bulging loose-leaf notebook that contains a separate sheet for every contributor who has given before as well as the names and phone numbers of several new prospects. Every call he makes is carefully noted on the appropriate sheet — down to the name of the secretary who answers the phone — and at the end of the day his staff will feed the notes into a computer program that can sort the respondents by industry, geographic location, donation history, and a host of other variables." [11]
In recent years one reform has been achieved regarding Congressional campaign financing. The law at one time had provided that when a member of Congress retires, unused campaign funds could be kept by the former Member of Congress, as personal income. This was in effect a retirement bonus. Because the money was often partially contributed by PACs, this was a way for PACs, over time, to in effect legally channel large amounts of money that would eventually go directly to politicians, not to their campaigns but to their personal bank accounts. [12]
The opposite page shows a chart that summarizes data on both total spending and PAC spending for U.S House races only, (not including Senate races), for the two year off-Presidential election cycles from 1981-82 through 1997-98 (NOTE: CHART IS AVAILABLE IN PRINTED BOOK ONLY, NOT ON-LINE EDITION, HOWEVER, THIS PARAGRAPH SUMMARIZES WHAT THE CHART SHOWS). Several prevailing trends are noteworthy. First, total expenditures on House races increased 89% over the twelve year period from the end of the 1985-86 election to the end of the 1997-98 election cycle. This is roughly equal to the 92% increase in Gross Domestic Product from the second year of the starting and ending election cycles:1986 to 1998. [13] Second, about half of the total campaign spending for incumbent Representatives was PAC money, compared to only about 13% to 19% for challengers. Third, the PAC spending split between incumbents and challengers was about 90% for incumbents, and only 10% for challengers. This enormous tilt of PAC money toward incumbents, and the fact that on average incumbents rely on PAC money for about half of their total spending, is in itself a strong showing of how powerful economic interests are having a dominant effect on the work of Congress. The conclusion is simple: PAC money goes overwhelmingly to incumbents because the PACs are seeing tangible results from this pattern of contributing. The effect of bundling as a vehicle to apply Corporate and special interest pressure on Congressional decision making is over and above the PAC contributions. While PAC money tended to increase at a steady rate from cycle to cycle, spending from other than PAC money increased an astonishing seventy five percent from 1989-90 to 1993-94, when the Clinton health care plan floundered and the Republicans took both houses of Congress.
We need to also consider the ratio of total contributions to Congressional campaigns to the size of the U.S. economy. In the 1997-98 Congressional election cycle, the total of all expenditures for all U.S. House and Senate races was $740 million. [14] This is less than one-one hundredth of one percent of the $8.5 trillion U.S. Gross Domestic Product. For every $1 spent by a Congressional campaign in 1998, the U.S. domestic economy produced about $10,000, or about $20,000 over a two year election cycle. Of this the Federal Government collects about $2,000 a year in taxes, and also distributes this $2,000. If Corporate and special interest campaign contributions resulted through changes in the tax code, in spending, or in regulation, in a higher total benefit to the contributors of even a small fraction of one percent of domestic U.S. economic production, these Corporate and special interests can gain the value of their contributions many times over.
In the 1900’s Congress grew to become the great pressure cooker for national interests. With a huge staff, and the power of Committee hearings to focus national attention, Congress was for many years able to closely and accurately gauge the effect of government, for good or ill, on all sectors and interests of society. Each member’s office was able to function as a kind of court of equity, to help constituents resolve their problems with the Federal government. With advances in technology and our ability to track, understand and regulate the economy, I personally believe that Congress is capable of performing this role better than ever before. However, the ability of Congress to fairly operate as a national court of equity, measuring the impact, benefit, and effect of the Federal government on society, is ruined by the corrosive effect of economic interests on Congress, exercised via various financial levers. Congress doesn’t have to look, act, and function like a puppet government — but that is exactly what will continue if the financial strings of Corporate and special interests aren’t cut.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.