Protect The First Amendment--By Changing It

August 25, 2014

By Joe Rothstein
Editor, EINNews.com

Before moving to Washington, D.C. many years ago I lived in Alaska. As with a lot of people who have come under Alaska’s spell, I feel I’ve never quite left it. And so I keep up with friends and happenings there, at times very actively.

My latest activity was helping out on a referendum to roll back an oil industry friendly tax system enacted by the state Legislature in 2013. The new system, which radically reduces the price producers pay Alaska for its oil, was proposed by Governor Sean Parnell, a former lobbyist for ConocoPhillips. It squeaked through the Legislature by the margin of a single vote, with two state senators, currently ConocoPhillips employees, voting for it. ConocoPhillips, ExxonMobil and BP control most of the Prudhoe Bay oil production and the pipeline that carries that production to the west coast.

The referendum to defeat the lower oil tax lost by a 48-52 vote in the state’s August 19 primary election. I’m not going to rehash the pros and cons of the measure or its merits here. But the manner of the referendum's defeat bears discussion.

The oil industry spent about $15 million to win the election. The opposition spent about $650,000. In addition to its direct campaign contributions, the industry ran a massive feel-good commercial advertising campaign that likely cost another $15 million. Virtually every business in Alaska that has contracts with the oil industry understood that failure to support the industry’s campaign was to be forever assigned to the industry’s blacklist. Big oil has a lot of commercial muscle in Alaska, and used every bit of it.

With most Alaska businesses, law firms and others compromised, referendum supporters were hard-pressed to raise money from those who have it. In the end more than a thousand individual Alaskans contributed small amounts in an effort to pass the referendum. Ninety per cent of the money against it came from ConocoPhillips, ExxonMobile and BP. Looking at the campaign from the narrow but all-important lens of dollar signs, it was no contest.

Two years ago, citizens of Washington State and California suffered similar fates trying to enact laws that would label genetically modified food. In Washington, the measure polled 61% support six weeks out from election day. But after food industry giants Monsanto, DuPont and others dumped $22 million into the campaign to defeat it GMO labeling lost 55-45. In California, the industry spent $45 million for a 51-49 victory.

Now, one way to look at this is that both the oil and food industries were merely engaged in campaigns of voter education. Once people knew both sides of the issues they made informed choices.

Corporations, according to the Supreme Court’s Citizen’s United decision, are people, and people have free speech rights under the First Amendment. To deny people-corporations the right to spend all they want, how they want, according to the Supreme Court, would be a denial of their First Amendment rights.

But applying that test to the Alaska, Washington, California and so many other campaigns for issues and candidates since Citizen’s United, you have to conclude that if these corporations are people, they have huge boom boxes for exercising their free speech rights. In fact, their amps are turned up so high hardly any other voices can be heard.

This can’t be what the nation’s founders intended when they wrote the First Amendment.

When Congress returns to work in September, a constitutional amendment to change the First Amendment will be on the Senate’s agenda. Even if it clears the Senate it’s going nowhere in the Republican-controlled House. But you have to start somewhere, and the attention the debate draws should add support for changes in the current unsustainable system. Unsustainable, because in a very real sense, big money and corporate power have hijacked democracy.

The Senate amendment would allow Congress and the states to set limits on how much money individuals and groups can contribute to influence elections and also reverse the Roberts Court’s cartoonish view of corporations as people. If the public were allowed to vote directly to undo Citizen’s United, according to a poll taken earlier this year, 80% would vote for it.

Clearly, the public hates the current system for financing campaigns. And as a practical matter, so do most members of Congress. Spending four hours a day on the phone begging for money, attending nightly elbow rubbings with well-healed lobbyists, and prostrating yourself before those with big bank accounts is not the way most sane people enjoy living.

But the more lopsided wealth becomes, the tighter its embrace over our political system. It’s going to take a monumental effort, some heroic actions and high political body counts to change it.

Meanwhile, we are well into another election season, with messages in North Carolina, Arkansas, Alaska, Iowa and elsewhere being written, produced, directed and paid for by those who don’t live anywhere near those states and have no right to be the dominant voices determining who represents them.

The Alaska oil referendum is just a minor footnote to all of this. As uneven a battle as it was, at least everyone could see who was writing the checks. With many campaigns, the money pouring in to brutalize candidates has no forwarding address. It comes from “charitable” organizations, trust funds, and money pools where voters have no way to identify the assailants.

Until that system changes there’s not a prayer of fixing the multitude of other problems that have created a government that voters see as permanently mired on the wrong track.

(Joe Rothstein can be contacted at [email protected])