Nexus: Chapman's Journal of Law and Public Policy

Today is November 1st. It is the eve of the midterm elections. Newspapers, magazines and other media sources are strewn with articles with titles like “The balance of power is at stake”, “Gridlock threat looms over Congress”, and “GOP set for gains as voters voice anger.” It has been said that this election has the potential of bringing great change to the nation. Grassroots groups like the Tea Party are kicking butt and taking names. Incumbents that have become household names as fixtures in Washington D.C. may be ousted. This is supposed to be a time excitement but, personally, I’m just thrilled the whole thing is almost over.

Why am I so disenchanted? I used to get excited about elections. I liked being a part of the process, having my voice “heard”. I am proud to say that I have voted in almost every election, big or small, local or national, for the last two decades. I considered myself an active and educated elector. So, what changed? I think the problem now is that I’m not buying any of it. I am sick to death of hearing about it. I’m tired of automatic dial phone calls from candidate A or candidate B asking for my vote. I’m tired of all of the television commercials where one group or another is trying, rather deceptively for that matter, to win my vote for or against their particular proposition. I’m tired of all of the (excuse the term) “crap” in my mailbox. I’m tired of it all because I am pretty much convinced that none of it will make a bit of difference. There doesn’t seem to be any true representatives of the “People” out there. Alternatively, if there are any true representatives, it seems as though they head off to Washington and, after drinking the Kool-Aid and making a few deals and concessions, they forget why they were sent there in the first place.

Add to this initial frustration the fact that, as I was driving to class the other day, I heard a news article on the radio regarding a new shift in radio advertising. The trend, so the story went, is to move from 30-second radio ads to 15-second spots. The reason… listeners’ attention spans are just not long enough to warrant the 30-second ads. Wow. Really? As a society, have we actually reached the point where 30 seconds of information is too much? Again… wow.

This new information caused me to think about one of the speakers at the recent Citizens United symposium. Chapman Professor Tim Canova wrapped up the daylong event speaking on a topic that I found very interesting – especially in light of my new-found disdain for the election cycle and the social reality that 30 seconds is an eternity.

Professor Canova began with a look at what he described as the extension of a legal fiction; “the corporate legal personality being extended to a constitutional status.” He discussed a conversation he had recently had with another Chapman Law Professor and former politician Tom Campbell. He recalled Professor Campbell noting that “what is missing in the political system is the idea of virture.” I really connected with that idea. That is where a lot of my frustration stems from, the lack of character in the political system. Professor Canova went on to point out a couple of instances, both on the right and the left, where elected officials left “public service” to take positions in the private sector or to take on speaking engagements. Specifically, he pointed to a Louisiana Republican Congressman, Billy Tauzin. Mr. Tauzin was the chair of the committee that oversaw the drug industry and he played a key role in shepherding through Congress the Medicare Prescription Drug Bill which forbid the federal government from negotiating prescription drug prices. After leaving Congress, Mr. Tauzin took the position as President and CEO of PhRMA, a pharmaceutical company lobby group, with a salary of $2 million. Professor Canova also called out President Bill Clinton for the $109 million he earned from speaking engagements in the eight years following his departure from the oval office. Professor Canova questioned which interests would be willing to pay these sums for speeches? Further, Professor Canova noted that in 1996, President Clinton signed legislation that gave away a huge chunk of the broadcast spectrum to television license holders. If that broadcast spectrum had been auctioned off it would have realistically brought $397 billion (yes, he clarified that he said “billion”). “I guess our politicians give away billions & make millions.” This legislation was quoted as being “a giant corporate welfare program” and “the greatest scam in American history”.

Though I am not ignorant to the realities of politics, I was taken back at the magnitude of these sorts of “deals” being struck. Is this really the type of public service the voters are expecting to get from their elected officials? One might say that these sorts of transactions are legal and therefore perfectly legitimate. But just because something is legal, doesn’t mean it’s right? Professor Canova followed up this thought with a quote: “you’re not in a court of justice, you’re in a court of law.” And therein lies the problem…too many elected officials doing what is legal instead of doing what is just.

Professor Canova then linked his point regarding the sale of the public broadcast spectrum to one of the causes of politicians being beholden to interests. Because the public airways are no longer public, and because the only way to get elected nowadays is through advertising (arguably TV advertising), candidates need to accumulate enough money to pay for these ads. And where does this money come from? Special interests and corporations. There is no way for John Q citizen to bring the kind of cash to the table to buy these television spots. However, even if there was a way to collect the money necessary to air a campaign ad, what can be said in 30 seconds? Worse yet, what can be said in the proposed 15-seconds that society capable of tolerating?

Maybe this was a bad day to be writing a blog. Maybe I’m just in a funk. Who knows? But regardless, these are real issues that have come to the fore with the Citizens United decision and I am certain that they will continue to guide political discourse even after tomorrow and the “great change” we all have to look forward to.