Chapter Five -- Part B Application and Implications of this Constitutional Theory |
Special Interest Money and Presidential Elections
Regarding special interest money and the Presidency, our political system has reached the point where we really have two kinds of elections — a financial election and a popular voting election. From The Buying of the President, 2000, by Charles Lewis and the Center for Public Integrity: "The dirty secret of American presidential politics is that the nation’s wealthiest interests largely determine who will be the next President of the United States, in the year before the election... [I]n every election since 1976, the candidate who has raised the most money by the end of the year preceding the election, and who has been eligible for federal matching funds, has become his party’s nominee for President." [15] Presidential candidates in primary campaigns are under enormous pressure not to be too critical of opponents — it may cost their party the general election. This fact increases the ability of a financial coalition to, in effect, bypass any serious contest for the nomination by building an insurmountable campaign fund for one candidate.
We have already looked at the erosion of the 1974 Federal Campaign Finance law up to the early 1990s We have also seen that by election day 1996, the 1974 restrictions for Presidential campaigns were in shambles. One bright spot remains — the general election campaign of the major parties is still 100% publicly funded. During the general election campaign, Presidential candidates are free of on-going financial influence from special interests.
Regarding the 2000 Presidential campaign, the 2000 Bush campaign has apparently added a new feature to the practice of bundling individual contributions. As reported from a 1/16/00 Newsweek press release: "While touted as a sign of grass roots enthusiasm for a candidate, Texas Gov. George W. Bush’s fund-raising triumph is actually the product of a group of powerful businessmen who were looking for a candidate to support even before Bush entered the presidential race. About 150 of these fund-raisers, called the ‘Pioneers’ by the Bush campaign, have been ‘bundling’ contributions from individuals in major corporations and industries and each has raised more than $100,000, reports Investigative Correspondent Michael Isikoff... At last count, more than 170,000 individuals have written checks which, by law, cannot exceed $1,000 apiece... Bundling is legal, and all campaigns do it. But Bush’s Pioneers have done it more vigorously than most, Isikoff reports...The campaign has assigned ‘tracking code’ numbers to these trade association heads...the Bush campaign and the lobbyists use the numbers as a kind of scorecard...In an internal Bush campaign memo obtained by Newsweek, Edison Electric chief Kuhn, a Bush classmate at Yale, reminded power company executives to include the industry’s tracking code on the bottom of their checks for a Bush fund-raiser. Written on Bush campaign stationery, the May 27th 1999 memo states, ‘it does insure that our industry is credited, and that your progress is listed among the other business/industry sectors.’" [16]
From the Newsweek 1/24/00 article: "Under federal law, corporations can’t contribute directly to a candidate. But by bundling, the Pioneers work around those rules. Consider Vinson & Elkins, the bluechip Houston-based law firm (which also lobbies in Washington for banking, energy and gambling interests). As a firm, it can’t give Bush a dime. But senior partners Joe Allen and Tom Marinis, both Bush Pioneers, arranged for their partners, associates and spouses to donate a total of $185,000 to Bush’s campaign. Likewise, Ken Lay, the chairman of Enron, an energy conglomerate, wrote top company executives asking them to make the ‘maximum’ contribution to Bush - and ended up collecting $92,000." [17]
If this apparently emerging Bush trend becomes the new standard for Presidential fund raising, we will probably end up with a situation where a monolithic group of corporate contributors settles on one major candidate for each party the year before the election, and that candidate, when elected, operates a kind of regency Presidency, where the coalition of financial backers and their corporate interests are the regents. In one respect this actually has the potential for being an improvement over the Clinton Presidency — if such a regent President were to operate by giving only a marginal tilt at the industry level to the economic backers, while refraining from distributing "targeted" favors through the appointed Federal executive branch to specific corporate and individual backers. However, the tendency of economic interests to gain the maximum benefit from their contribution is so great that the Presidency is likely to remain in danger of becoming a de facto spoils system unless campaign finance is fundamentally changed. The danger of a Presidential-Corporate spoils system is obviously greatest regarding large Corporations and industrial groups.
The Buying of the President 2000 contains profiles of major candidate. These profiles show that both Bush and Gore have histories showing a pattern of rewarding major contributors with various kinds of taxpayer subsidized benefits. My own perception is that there isn’t much difference between Bush and Gore in this regard. They are both beholden to special interests, and they both have histories of steering rewards to their financial backers. Bradley has been an advocate of campaign finance reform. However, Bradley was one of the early leaders in "bundling" individual contributions, as far back as 1990. [18] McCain was one of the "Keating Five", five Senators who helped Charles Keating, a major McCain contributor, to in effect delay the collapse of Lincoln Savings and Loan. When it did collapse, Lincoln cost the taxpayers $2.6 Billion. McCain received a relatively light Senate Ethics Committee rebuke. Lewis characterizes the Ethics Committee’s review of McCain’s role, and the Committee’s rebuke of McCain, as saying: "he had ‘exercised poor judgment’ but that his actions had not been ‘improper nor attended with gross negligence.’" [19]
Given the dominance of special interests over Congress, it is not surprising that the party apparatus is strongly backing both Bush and Gore. It doesn’t appear either one would be likely to launch a serious effort to reform the various ways special interest money dominates our political system today. It seems likely that either one would use the power of Federal appointment to reward their supporters, at least to some degree. Any serious leadership at the Presidential level aimed at reforming the current system will have to come from 1) an upset by Bradley or McCain, 2) a Reform Party candidate such as Pat Buchanan or Ross Perot, 3) someone like Green party candidate Ralph Nader, or 4) the 2002 Congressional elections.
This book is going into publication just before the February South Carolina primary. At this point, McCain has decisively won New Hampshire. A McCain upset may be in progress now.
The Clinton Administration and the Clinton Agenda: Constitutional problems
In the unamended Constitution the Presidency was established as an independent branch of government. But as we have seen, the choice of the President was with Congress until very late in the Convention. Presidential choice was put initially with electors, and the method of choosing these electors was to be decided by each State legislature. In the last chapter, a speech by Gov. Morris was excerpted, presenting the President as "...the guardian of the people, even of the lower classes, against Legislative tyranny, against the Great and the wealthy who in the course of things will necessarily compose the Legislative body." Television more than anything has made it possible for someone to present himself as such a champion or guardian of the people, and to take on a "do-nothing" or "special interest dominated" Congress. Clinton seems to have at least postured himself as exactly this kind of champion. Arguably, the strong economy has been of greatest benefit to the groups in our society who have been the most marginal and left out. On a number of occasions Clinton has forced the Republican’s hand in Congress when they have taken extreme actions responding to the pressure of special interests. However, it is obvious that for years, much of Clinton’s day to day activity has been meeting with, and accommodating, various special interests. His administration has been a kind of coalition government of high administration office holders and special interests.
Early in the Clinton administration, the attempt to push through, essentially unrevised, a comprehensive national health care system, represents a new idea of the Presidency. This idea of the modern President as someone who goes directly to the people seeking a mandate for a comprehensive national plan is possibly the biggest change in today’s Presidency, compared to the executive branch the Founders had in mind.
This idea that a Presidential election can give a mandate for a comprehensive national plan has serious underlying Constitutional problems. These can probably best be seen by comparing the U.S. Federal system to the English national government. In today’s England, Parliament’s House of Commons is effectively a one-house legislature, with almost unlimited power to legislate. In an English election, members are elected to Parliament from districts. However, party discipline is crucially important in England — far more so than in the United States, where Members of Congress have sometimes been described as "political entrepreneurs". English voters in each Parliamentary district know that they are really voting more for a political party than for a candidate. After the election, the party with a majority in Parliament selects a Prime Minister and Cabinet, and forms a government. In this system there are essentially no checks and balances at all. As an English voter, you can assume that an English political party platform will be carried out exactly as presented if that party wins — because there is nothing to prevent it. Under this kind of a system, a party leader can legitimately campaign by presenting a national plan and winning a mandate for that plan.
In America, our Constitutional system of checks and balances has always been a strong barrier to having such a national plan as the theme of a Presidential campaign. Because American Federal power is divided, everything must be done with at least some consensus between Congress and the executive. For most of recent U.S. history, Congress has been the clearing house where vital interests of all major economic and political constituencies can be most accurately assessed. The Clinton administration tried to push through Congress a national plan — health care — in the same way this kind of a plan would be passed by Parliament. This kind of an effort goes totally against the grain of the American system of Constitutional checks and balances.
It seems to me that the Clinton administration has always viewed the Federal government in terms of what powers of the executive are available, and how they can use these powers to accomplish their agenda. This seems to be their general view of power. At the outset, they simply did not see Congress as an equal partner — an independent branch of the Federal government, with both a legitimate Constitutional role and good ideas of their own to contribute. They saw Congress as having what they thought of as "their" Parliamentary majority. They thought "their" democratic majority Congress should pass "their" national plan, health care, with essentially no review or modification. It seems to me that both this attitude, and the growing concern of the American people about the ethics of the Clinton administration, paved the way for Republicans to "nationalize" the 1994 Congressional elections, and take away the Clinton "Parliamentary" majority in Congress.
A second major problem area in relations between the President and Congress is appointments, of both judges and executive Civil Officers. From the outset, the Clinton administration appears to have used the power of appointment in a highly political way. A telling early example of this was the decision to fire all ninety-three U.S. attorneys shortly after Attorney General Reno took office. [20] These are executive appointees, and there is no question that the President has the Constitutional authority to do this. However, historically, these positions have long been treated as part of a judicial system that is supposed to be non-political. In the course of the Clinton administration, there appears to have been a wide spread breakdown in what used to be at least a reasonably good working relationship between earlier Presidents and the Congress over the routine appointment and Senate confirmation of civil officers. One underlying issue here is the power and discretion these appointees have to shape how the law is executed. If the President and Congress have significantly different agendas, the President can try to put people into executive departments that will administer the government in ways that go around or defeat the intention of Congress. If this is done deliberately, on a wide spread scale, it goes against the spirit if not the letter of the Constitution’s provision that the President "...shall take Care that the Laws be faithfully executed,...".
A third major problem area is the complete politization of the Justice Department. In late 1997, in the face of intense pressure, Janet Reno did not appoint an independent counsel to investigate the 1996 Clinton-Gore fund raising. We have looked at this history in Chapter One. In the Nixon Administration, when Elliot Richardson was asked to fire Archibald Cox, Richardson resigned rather than go against his principles. Reno didn’t have to resign — all she had to do was appoint an independent counsel. Simply put, the Clinton Justice department appears to have followed a broad policy, whenever possible, with only token exceptions, not to prosecute people in the Administration who were cooperating with the Clinton agenda.
The Clinton administration seems to have entrenched itself along this line: "Overall, we, and our agenda are good — the special-interest dominated Republicans and their agenda are evil. To be on our team, and to help achieve our agenda, you must be prepared to do whatever it takes, including concealing, lying, and covering up, to prevent the Republicans and the right wing conspiracy from defeating our agenda."
It is important to keep in mind a mitigating factor in favor of the Clintons. Based on The Buying of the Congress 1998, it is apparent that the special interest dominance of Congress has had a serious harmful effect on the health, safety and well-being of millions of Americans. The Clintons have seen, and contended against, many overreaching efforts by Corporate special interests to obtain benefits. Sometimes these efforts are directed at the tax code, where the impact is diluted. However, particularly regarding health and safety, there have been many efforts by Corporate interests to obtain economic benefits at a direct cost to the health and safety of American workers.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.