Reed: Senate Integrity Demands Burris be Denied

Hi, folks, and welcome back. Our topic this week is, "Should the United States Senate seat Roland Burris?" Based on the flip of the coin, I will argue that Burris should be denied entry into this august law-making body.

It's important to note that, even as we argue the point, the wheels are turning and a decision may be finalized as the debate gets posted. This should not affect our arguments or your comments. In fact, any decision on Burris' fate may indeed make the debate more lively. Remember, too, that the ultimate decision could have affects reaching well outside the borders of Illinois.

It is important to begin by noting that, while some may question Burris' overall ability to be an effective voice for the people of Illinois in the U.S. Senate, no one has thus far questioned his moral character or intimated that he is privy to the scandal in Springfield. Burris, 71, was the first African-American to be elected to statewide office in Illinois and served as its comptroller in an admirable fashion. As Illinois' appointed Attorney General, he has avoided the odorous taint that often overwhelms high-ranking politicians in a state where a felony record is not required to hold high office, but often seems inevitable by the time the office holder leaves office and enters into custody.

The fact remains, however, that Burris has tried and failed on numerous occasions to earn the trust of Illinois voters in an attempt to gain higher political office. He was defeated in a run for the U.S. Senate in 1984. He failed in attempts to become Illinois' governor in 1994, 1998, and 2002. He was trounced by Richard Daley when he ran for Mayor of Chicago in 1995.

One must admit that Roland Burris is no quitter. His desire for high office, and some would say his incredible ego, has led him to make comments that have raised questions among Illinois voters as to his desirability. According to an article printed in the Chicago Tribune in November of 1993, Burris claimed that he was "not some fluke or perennial candidate." In 1998, the Tribune quoted Burris referring to his democratic primary opponents as "non-qualified white boys."

The fact that Burris would play "the race card" in a state where many African-Americans had already made great strides toward overcoming racism is telling, and a very good reason for the Senate leadership to deny Burris' entry. Illinois Congressman Danny Davis, Governor Rob Blagojevich's first choice for the seat, is also black. But according to the Chicago Sun-Times, Davis refused the offer of the seat from the scandal-tainted Governor, saying, "It would be difficult for me to generate the trust level people would have to have in me" (see: www.suntimes.com/news/commentary/1363433.)

Illinois Congressman Bobby Rush, a former Black Panther, apparently views the issue as soley about race. According to the Sun-Times article mentioned above, Rush referred to the United States Senate as "the last bastion of plantation America." He told the Tribune that senate democrats would "have to come and ask for forgiveness" from black voters if they failed to seat Burris.

This style of politics has become, almost exclusively, the mantra of aging civil-rights-era veterans who, in large part, shunned the Obama candidacy in favor of Hillary Clintons's more traditional campaign rhetoric. But the change that President-elect Obama championed is based not on eliminating the pain of an "oppressed minority", but rather unifying Americans to face the challenges of new and uncharted territory, to the benefit of all. In spite of Rush's statement that the United States Senate "needs an African-American", what the people of Illinois, and indeed the entire nation, need is a Senator who can take his or her seat free of scandal and ready to meet the challenges and sieze the opportunities brought about by our recent history-making election.

My learned opponent will no doubt argue that Blagojevich, while under federal indictment for trying to sell the Senate seat to the highest bidder, is still the Governor of Illinois, and as such has the authority to appoint the successor to Barack Obama until such time as the people of Illinois, or the courts, take away that privilege. Such is not likely to occur any time soon. But the Senate also has legal authority to refuse to seat Roland Burris. According to Article I, Section V of the U.S. Constitution, "Each House Shall be the Judge of the Elections, Returns and Qualifications of its own Members." Section V goes on to say that "Each House may determine the rules of its proceedings" (see: http://www.usconstituion.net/).

Thus it appears that Burris, should he arrive at the doors of the Capitol with certified election papers bearing the signature of the Illinois Secretary of State and the official seal of the State of Illinois, then he will be the legally-appointed Senator from that state. And should two-thirds of the Senate refuse entry to Burris, for whatever reason, he will have no recourse on the federal level unless the Supreme Court intervenes, which is highly unlikely.

So this is not a legal argument. Rather, it is an argument based on somber judgement, common sense and an eye toward the greater good. As the Sun-Times said in a January 6 editorial, "If Burris is truly taking this job for the benefit of the people of Illinois, as he insists, he'll do the honorable thing - not take it. This is not about race, this is not about Burris. This is about standing up for fair play."

Fair play - not a common term used in political discourse over the last century, especially in Illinois. But in light of an historic election in the midst of uncertain and tenuous times, strong leadership and fair play may well be the only things that save our great nation. Illinois, and the United States Senate and the people it represents, deserve no less.

Dano: If it's Legal, Let Burris Sit in the U.S. Senate

Welcome back, folks. This week, Reed and I are revisiting political matters, mostly because there's a lot to discuss, but also because we sense our readers prefer political topics to non-political ones. Feel free to correct our assumption if it's wrong.

The coin flip has me arguing this week that the United States Senate should not block the seating of former Illinois Attorney General, Roland Burris, as Barack Obama's replacement. My arguing this position requires that indicted Governor, Rod Blagojevich, was within his legal rights to make this appointment (which I believe he was), and, further, that the Illinois Supreme Court will either force the reluctant Illinois Secretary of State to certify the appointment, or will determine that certification is not legally necessary (these issues are yet to be determined). As of Tuesday, January 6th, the U.S. Senate has refused to seat Burris on the sole basis that his paperwork is not certified by the Illinois Secretary of State. I will proceed as if these issues will be taken care of, such that the U.S. Senate will be saddled with this seating decision without regard to technical impediments.

A little housekeeping for anyone who may not know it: the United States Senate does not have to allow anyone to hold a Senate seat, even if they were legally and unquestionably elected by the people of their state. All it takes is a 2/3 majority vote for the Senate to deny someone a Senate seat, so the issue at stake here is more a moral or ethical one than a legal one.

Those who would suggest that the Senate should deny Burris the seat are, most often, relying on the notion that the appointment itself was inappropriate because Illinois Governor Rod Blagojevich has been indicted for corruption -- specifically, for trying to "sell" Obama's vacated Senate seat for his own personal gain. Current Illinois Attorney General, Lisa Madigan, asked the Illinois Supreme Court to strip Blagojevich of his Gubernatorial duties (including the Senate appointment) pending the outcome of legal investigations. They denied her request. Every Democrat in the U.S. Senate asked Blagojevich not to make any appointments, as did the Illinois legislature and most other officials in that state. By and large, the Illinois electorate also appears to have been against the Governor's action. But the rub is that he hasn't been convicted of any wrongdoing, yet. So, what's the deal?

Two Kinds of Justice

This topic is pretty easy for me, because, as a former paralegal and a current criminologist, I have studied law extensively. For those of you who very well understand U.S. jurisprudence, please forgive the "professorial tone" of the following paragraph; most people have not studied these issues, so a little background to support my point may be necessary.

There are, in the U.S., two distinct kinds of justice -- procedural justice (meaning that outcomes are just, based upon the use of proper legal procedures), and substantive justice (meaning outcomes are just, based upon the facts as determined by the finders of fact). Most of us believe, in our hearts, in the supremacy of substantive justice over procedural justice. Remember the national outcry when O.J. Simpson was acquitted of the murders of Nicole Brown Simpson and Ronald Goldman? His acquittal was actually based upon the findings of fact made by the jury (sounds like substantive justice), but the jury's findings were greatly affected by law enforcement's procedural mistakes. In the United States, procedural mistakes, especially deliberate procedural wrongdoing, is thought to be as egregious as Simpson's alleged criminal acts. In fact, all appeals of criminal convictions must be based on procedural mistakes or wrongdoing, not upon the findings of fact. Note to law enforcement: DON'T EVER TRY TO FRAME A GUILTY PERSON. The upshot of this is that, no matter how we may disagree with the outcome, Simpson was appropriately acquitted of those murders from a procedural justice point of view. So, what does this have to do with Blagojevich appointing Roland Burris? Read on.

The Law is the Law

Blagojevich has not been tried on the charges for which he was indicted, no less convicted. "Innocent until proven guilty" remains the standard upon which we base our legal procedures. There has not been even a single formal release of evidence against Blagojevich, because there has been no formal prosecution. Yeah...I believe, as many do, that he probably is guilty as charged -- the man is an unpleasant person who seems inclined to abuse power in the ways he has been accused of abusing it. But, again, this is not sufficient to call him a guilty man.

Blagojevich remains the duly elected Governor of Illinois, and the law says that, as such, he alone has the ability to appoint a replacement for Obama as U.S. Senator from Illinois. The law doesn't require that he do so, but he has the sole ability. Because the Illinois Supreme Court has elected not to act against him, the Illinois Legislature is the only remaining legal body with the ability to modify the Governor's procedural rights (presumably by impeaching and successfully prosecuting him for some crime or crimes). This has not occurred. Therefore, as distasteful as it seems, Governor Blagojevich was within his rights as Governor of Illinois to appoint Roland Burris to replace Obama.

The U.S. Senate "Calculus"

So the question for the U.S. Senate becomes an ethical one: Should we allow the man appointed by the tainted Illinois Governor to hold a Senate seat, or should we deny his entry and wait for the people of Illinois to replace Obama in a new election? It is clear that they are leaning toward denying Burris the seat, but this is a mistake.

The fact is that U.S. Senators are lawmakers. As such, they should be the standard-bearers of impeccable legal procedure. In this case, they should recognize that Burris's appointment was legal and procedurally allowable. More importantly, however, denying him the seat based upon "gut feelings" about Blagojevich's guilt, while within their rights, amounts to convicting Blagojevich in a kangaroo court. I, personally hold U.S. Senators to a higher standard than that. Because Blagojevich was not actually convicted of wrongdoing, there is simply no logical reason to suggest that Burris is not a valid appointee. Remember, Roland Burris has not been accused of wrongdoing, and was, in fact, the Attorney General in Illinois who ran unsuccessfully against Rod Blagojevich for Illinois Governor. While Burris has also previously run for the U.S. Senate and been denied by the voters, this appointment is legal. The Illinois voters will have their chance to correct any "mistake" they feel has been made in the next election cycle. Members of the U.S. Senate, I fear, are playing politics at the expense of procedural justice.

Really?

Should Roland Burris have accepted the nomination? There's another can of worms, but, in my humble opinion, it's irrational political suicide. Maybe being irrational and suicidal are reason enough for the Senate to deny him the seat.

Naw...

Reed: Living a Celebrity Life Means Taking the Bad with the Good

Welcome back, folks. Although our last topic was deemed "boring" by our first poster, it has generated more feedback and more new posters than anything we have debated so far on Butt and ReButt. Thanks to all who have participated, and please spread the word.

This week, we are discussing whether or not media access to celebrities and public figures should be regulated by the government. Based on the flip of the coin, I will argue that those well-entrenched in the public eye do not warrant special protection from intrusion by the media.

On its face, the debate would seem to revolve around the Constitution's guarantee of freedom of the press versus and individual right to privacy. But the argument can be made that, while freedom of the press is specifically guaranteed in Amendment I of the Constitution, the "right to privacy" is a conceptual right granted through interpretation and application, not through specific mention in the Constitution.

Indeed, the privacy rights most Americans assume are "protected" exist only because courts have ruled that such rights fall under the protections assumed in Amendment IX, which reads, in part, "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other (rights) retained by the people (see: www.answers.com/topic/amendment-ix-to-the-u-s-constitution).

Both the first and ninth amendments to the Constitution were ratified in December, 1791. But not until after World War II were arguments heard before the U.S. Supreme Court that were based on protections provided through Amendment IX. The most famous of these, and the most controversial, remains Roe v. Wade, the landmark 1973 abortion rights case. The finding rests almost entirely on the Court's perception that the privacy of the woman seeking an abortion was protected as one of the "other (rights) retained by the people" mentioned in Amendment IX.

But in 1986, the Court backed away from such a broad-brush approach to privacy rights in the case of Bowers v. Hardwick. In this case, a Georgia law outlawing "sodomy" between same-sex couples was ruled constitutional, in spite of the respondent's citing of Ninth Amendment precedents (see: www.law.umkc.edu/faculty/projects/ftrials/conlaw/bowers). Then, in 2003, the Court again reversed itself in Lawrence v. Texas, overturning a law similar to the Georgia statute on the basis that government could not establish laws affecting the behavior of consenting adults in private settings (see: www.law.cornell.edu/html/02-102).

So it is clear that, even today, the constitutional waters regarding privacy rights remain murky. So we must often rely on a concept that is in woefully short supply today - common sense.

Common sense would dictate that we should be afforded privacy to do any legal thing we desire, unless of course we have sought out and achieved the attention of the public through our conscious actions. Such is the case with celebrities, politicians and others in the public realm. They have actively sought, and subsequently profited from, fame. So I would submit that, fame inevitably coming as the result of exposure to the public realm through media contact, any desire by a notable figure to protect his or her "privacy" can only be exercised in those cases where laws have been violated.

For instance, I don't think anyone would argue that Britney Spears would be within her rights to file charges against a photographer hiding in her closet. Such an interloper should be arrested and prosecuted under existing statutes pertaining to trespassing, breaking and entering and stalking. But Ms. Spears certainly has no cause to complain about the reporters and photographers gathered at the door of the rehab center, because it was these same journalists, and I use that term loosely, that made her the icon she is today, thus providing the wealth and fame she obviously desired.

The term "paparazzi" was unknown to most of us prior to the tragic death of Princess Diana. The term was coined from a character in a play produced by Federico Fellini, "La Dolce Vita". It is said that Fellini named the character "Paparazzo" based on a term from an Italian dialect that describes the annoying buzz of a mosquito. Quite apt, I would say.

The case of Princess Di and her boyfriend Dodi Fayed raised many questions about the excesses of the media. And while no one was ever prosecuted for her death, courts in Great Britain and France ruled that their was enough culpability to go around, and laws were broken. And this is the important issue - if a reporter or photographer is breaking the law, prosecute them. If they are not, then the protections afforded them by our Constitution must be respected.

It is easy, I suppose, for someone who idolizes a singer or actor to sympathize when their hero is fighting his or her way through jostling crowds with flashbulbs popping and Barbara Walters-wannabes hurling personal questions. But I find it hard to cry crocodile tears for people who hire agents to publicize their every move, who never miss an opportunity to find a photographer when they are at their best, and then complain when they pop up, uncombed and disheveled, on the cover of the tabloids or the lead story on "Entertainment Tonight."

"I have a life, and you should respect my privacy," is the constant refrain. Ah, but time goes by, and as talent wanes and the aura can only be preserved through massive amounts of plastic surgery, that aging star will long for the bygone days and complain about being "forgotten." Alas, such is the price of fame.

And it's not just the Hollywood types. I'm sure Senator Larry Craig figured he was safe from scrutiny, even though his dubious foot-tapping occured in a public restroom. I suggest that, if Craig had opted to avoid the limelight that comes from membership in one of the most august bodies in the world, his arrest would not have even made headlines in his hometown paper.

For those of us who find the attention paid to these celebrities disgusting, we have only ourselves to blame. Our thirst for dirt, our love of gossip and our incredibly short attention spans have created this monster, and some have thrived as a result. There is a cure, of course, but it is not government intervention. Rather, it involves the simple task of turning off the television, not buying the magazine, and seeking a more intelligent outlet in our quest for knowledge.

Alas, I am dubious that such will ever be the case. I told a friend during the recent presidential campaign that, if one of the candidates had been assassinated, the press would have broken away from the story to cover Britney's latest exploits.

So it seems our media is a mirror of our society, and the reflection is certainly not pretty. But our press is at least free, and guaranteed to remain so. That must never change.

Dano: The Media is Regulated Already, and They Should Be

Back again, everyone...and, for a change, we're not doing a political subject this week (okay, maybe that's debatable). We all have strong opinions about paparazzi after being privy to their work with Princess Diana, Britney Spears, Paris Hilton, and even families of crime victims or accused perpetrators. It's an interesting subject, for sure. The coin toss this week has me arguing in favor of regulating the media's rights when covering celebrities and public figures. Because this subject requires some legal research, most everything I allude to here can be found at http://law.findlaw.com/state-laws/state-codes.html, or http://www.findlaw.com/casecode/.

A lot of discussions about this topic center around celebrities and their tendency to seek publicity until they get too much of it. Most of us don't feel too sorry for them, because they sort of "made their own beds and should have to sleep in them." Sometimes, this argument is hard to counter, because so many young Hollywood types, in particular, really do bring it on themselves (Paris Hilton comes to mind, who is famous just for being famous by her own tactics of seeking publicity). But many celebrities don't appreciate paparazzi intrusions, whether in public areas or otherwise. Celebrity status earned because you are a fine actor or popular politician, for instance, does not automatically invite intrusions of privacy by the media. Moreover, paparrazi, in particular, have become more and more bold over the years and have sometimes caused mayhem and physical and mental danger to their subjects. But doesn't the press have a right, under Article 1 of the Constitution, to report on newsworthy people in this way? Not always.

There are competing legal issues at stake: the Constitutional rights of free speech (and freedom of the press) vs. an individual's privacy rights. Rights to privacy are not specifically delineated in the U.S. Constitution, but the courts have repeatedly "found" those rights in various passages, and certain kinds of privacy are now considered defacto rights. But laws and regulations are not guided only by the U.S. Constitution; they are also informed by state Constitutions, state statutes, legal scholarship, and court precedents. Some of these will be discussed shortly.

Let's get a common misunderstanding out of the way. The notion that the freedom of press and freedom of speech rights are inalienable, or not subject to regulation or limitation, is incorrect. We all know, for instance, that courts routinely bar the press from legal proceedings or impose gag orders, because, even though potentially newsworthy, the right of a defendant to a fair trial could be compromised by the exercise of these rights. Constitutional rights are always relative -- they are granted as equitable rights, meaning that you have them if they don't impinge on the rights of others. Similarly, you can't legally holler "fire!" in a crowded movie theater when there is no fire, and you can't say the word, "bomb" in an airport in the absence of a bomb. Most people would not argue that these limitations are inappropriate. So, then, is it equally appropriate to regulate the media's rights as they relate to covering celebrities and other public figures? Certainly.

The courts have routinely recognized personal privacy rights for all citizens, whether they are public figures or not. However, they have also understood the unique nature of entertainment celebrities, and their tendency to seek publicity. Because of this difference between the famous and the non-famous, remedies at law are much harder to come by for celebrities; the fact that they often seek celebrity status and media coverage makes it harder for them to claim unwarranted intrusion, and the media has a greater case that the coverage is "newsworthy." Those that don't seek the attention in public, or are hounded to such a degree that they feel threatened, however, have some legal protection, thanks in part to Jaqueline Kennedy Onassis.

Without going into a lot of specifics, Onassis and her children were relentlessly followed, photographed and otherwise hounded by a man named Ron Galella, who believed that the minutia in the lifestyle of the Onassis family was newsworthy. In Galella v. Onassis, 487 F.2d 986 (2d cir., 1973), the court determined that Onassis and her family had a right to privacy that was being infringed upon by the activities of Mr. Galella. Specifically, he was enjoined from "approaching her within a distance of 25 feet or her children within a distance of 30 feet." In their ruling, the court recognized that the right to privacy includes:

"a general right to be left alone, and to define one's circle of intimacy; to sheild intimate and personal characteristics and activities from public gaze; to have moments of freedom from the unremitted assault of the world and unfettered will of others in order to achieve some measure of tranquility for contemplation or other purposes, without which life loses its sweetness."

Moreover, every state has statutes that govern the right to privacy. In most instances, the privacy rights fall into four categories that were taken from the Second Restatement of Torts, a scholarly legal treatise relied upon by the courts. Invasions of privacy are: 1) intrusion into solitude, 2) public disclosure of private facts, 3) depiction in a false light, and 4) commercial exploitation of a person's name or likeness, also called appropriation.

Upset celebrities rarely litigate based upon either Galella or privacy statutes, most likely because the paparazzi activity generally occurs in public places (where the expectation of privacy is not assumed), or the photos or other coverage of their private property activities is done from a distance (with telephoto lenses or helicopters, for instance). This latter method of gaining access to the private goings-on of famous people has yet to be examined by the courts. Entering the private property of an individual is a clear violation of both privacy statutes and trespass laws, but gaining images from public areas through the use of long lenses does not fall neatly under the statutory prohibitions. More often than not, celebrities who sue over these kinds of intrusion do so under copyright infringement laws (similar to the fourth invasion of privacy tort listed above) -- the unlicensed use of their copyright-protected images for financial gain.

It is also probable that celebrities who don't seek media exposure understand that the paparazzi are supplying the demand of the public for "the skinny" on them. Thus, even if they feel intruded upon, complaining about or litigating these intrusions may cause damage to their reputations of being responsive and appreciative of the public's adoration. Probably a powerful inhibition for most of them.

On a final note with regard to celebs, many have suggested that stalking laws be changed to cover the activities of papparazi -- particularly after both the Princess Diana episode and, more recently, the relentless and damaging hounding of Britney Spears. Stalking laws, however, are criminal statutes (privacy laws are civil) designed to prevent offenders from threatening harm or causing fear of harm in their victims. Paparazzi routinely and successfully deny these intentions. California legislators have recently tried to change the California Code to expand these laws such that the intent of the "stalker" to cause fear is not required to be proven, so long as the "victim" experienced fear. Although public support has been rising, it does not appear that they have passed any such changes to the stalking statutes, yet.

Who among us has not winced at the poor judgment of media who camp out on the lawns of folks who are the survivors of murder victims, or missing children, or other people who had no intention of being public figures, but got thrust into the position? What about regulating the media's access to these poor souls? Well, again, there are existing trespass laws, and I suspect that if they knew about it, many could avail themselves of the protections afforded by Galella, at least when they are in public places. These people are newsworthy, even if they don't want to be, but the media really ought to have more compassion than to rest their laurels on First Amendment rights to hound this brand of public figure. That's just common decency, and viewers and readers ought to complain about these media excesses (market forces can be powerful controls, no?).

So, then, the media are and should be regulated in their coverage of celebrities and public figures, the same as they are and should be in their coverage of ordinary citizens. It's nothing more than a balancing of rights. When they violate privacy rights by trespassing, legal protection is available to the victims. To the extent that the media relentlessly follow celebrities in public places and report on their activities, the Galella precedent is available to those public figures who feel their privacy rights are being violated in the way the Onassis family's were. Otherwise, they should just put up with market forces or stay home.

Dano: Public Campaign Financing? It Doesn't Matter

(Note: Reed's post gives a succinct history of campaign finance in the U.S., so I'll not repeat it. I will also avoid repeating his citations for brevity, though I relied on some of them also.) 

Well, for a change, I got a coin-flip this week that threw me for a loop. I am supposed to argue that we should maintain the public campaign finance system for federal elections (and, perhaps, mandate its use). But, by golly, after my research, I decided that it doesn't make a lick of difference where the candidates get their "individual contributions." I guess that sounds confusing.

The term, "public financing," is a bit of a misnomer. The fact is that money provided by the government comes from individual taxpayers (private citizens) who decided to contribute $3.00 of their personal tax obligation to the campaign finance fund for presidential elections. Yes, this is a small amount from each donor, but it adds up (though, as of 2006, fewer than 10% of taxpayers contributed annually--more on this issue, later). Moreover, there is an element of private donations within the public finance system, because it only provides "matching funds" of up to $250 per private donation. "Private financing" simply means that individuals donate directly to candidates instead of doing so through their tax returns. The difference is that individuals can (and do) contribute considerably more, though also limited by law, through this direct-donation mechanism. Also by law, corporations are prohibited from donating directly to candidates under both systems.

Fundamentally, proponents of public campaign financing say that this system reduces the possibility of corruption (because the source of candidate funding is known in advance, and is above-board), and helps to minimize the relative advantage of having deeper coffers than other candidates, such that "buying an election" becomes less likely. Under this system, candidates are not permitted to use more than $50,000 of their own money for their campaigns (unlike the substantial personal financial input provided by previous candidates, Steve Forbes, Ross Perot, Mitt Romney, and Hillary Clinton, to name a few). Of concern to candidates of parties other than Democratic or Republican, public financing is not available to them.

Those who support private campaign financing suggest that it, alone, protects the constitutional right of (unlimited) free speech, and that this system is regulated sufficiently to guard against corruption. The system is said to be superior because each donor has the right to direct their support to a specific candidate (where no such ability exists with public finance funds), further protecting the rights of donors to not support a candidate they don't like. Moreover, there are no limits on how much can be amassed in the aggregate, so if a candidate enjoys support from a much larger proportion of the public than his/her opponents, then his advantage in advertising funds is proportionate and fair. Finally, any party's candidates can get this form of funding -- not just Democrats and Republicans.

So, why doesn't it matter which system we use?

Of minor relevance, there are some equalizing factors between the two systems. First, the advantages of private financing are mitigated by available funds through public financing: 1) public financing subsidizes the nomination conventions of those candidates that accept it (not an insubstantial cost), and 2) public financing pays for the costs of attorneys and other administrative costs (also nothing to sneeze at). But that's not the main issue.

A less obvious issue is that, while we all know that public financing, at least in the 2008 campaign, garnered Senator McCain only about half the money that was collected by President-elect Obama, this is a consequence of both systems being utilized. Remember, above I noted that income tax contributions to public financing were made by fewer than 10% of taxpayers in recent years. (http://www.usatoday.com/news/washington/2007-04-17-preztax_N.htm?csp=34)

 If, however, candidates were required to use public financing (or, more accurately, prohibited from using private financing), the percentage of citizens choosing to donate with their tax returns would likely rise precipitously.  So, while the free choice to accept private financing exists along with the public financing system, a candidate can choose either method and take his chances, but private financing seems to hold the advantage so long as it remains available. This, by itself, is no reason to mandate one or the other.

The overarching reason the system chosen doesn't matter is that they each deal with "hard money" contributions only. Both systems allow expenditures of "soft money" contributions through the activities of political action committees (PACs), and by organizations known as "527s" and "501(c)s." Taken together, these organizations spend unlimited donation monies to support issues (directly), and candidates (indirectly ). The only "free speech" limitation on these groups is that they cannot suggest voting for or against a particular candidate. They can (and do), however, say things like, "candidate A is the only patriotic contender," and "candidate B is clearly unpatriotic." The power of these groups to affect elections was well illustrated by the soft-money-funded "swift boat" campaign against Senator John Kerry in the 2004 presidential race -- many believe this advertising strategy cost Kerry the election. The Supreme Court has upheld the right of these groups to advertise in this way, and no legislation short of a Constitutional amendment can change this fact (see Buckley v. Valeo, 424 U.S. 1 [1976]). So, essentially, as long as PACs, 527s, and 501(c)s can operate with impunity, their impact on election outcomes is far more relevant than the direct ads by the candidates, regardless of the sources of their funding.

Some might argue that direct candidate ads have a great deal of impact on voters' choices. That may be true, but I submit that the number of ads, and the geographic spread of them, is not as important to campaigns as it once was because of the advent of 24 hour news networks that endlessly replay the campaign ads of the candidates during the entire course of the election cycle. Even though John McCain spent far less than Barack Obama, for instance, I saw every important political ad that McCain produced as many times as I saw Obama's ads (okay...maybe not quite as many times, but effectively so). The news pundits see these ads as free content, and this essentially gives every candidate free air time. Unfortunately, the news outlets also give free replay time to the ads from the PACs, 527s and 501(c)s. So, again, the power of soft money organizations remains superior. Until this changes (through FCC regulations on media or a Constitutional amendment limiting soft money free speech), there is simply no important difference between the public and private campaign finance systems.

Campaign finance is a very complicated issue, to be sure. But concerning ourselves with an either/or argument over public or private donations is, quite simply, a misdirected effort. Both systems are regulated to prevent corruption, with debatable success, perhaps. But campaign finance reform needs to concern itself primarily with soft money controls if we expect to level the playing field for all candidates and prevent corruption and influence peddling in presidential campaigns.

Reed: Presidential Candidates Don't Need Our Tax Money to Run a Campaign

Hello, folks, and welcome back to Butt and Rebutt. As you've noted, we have been somewhat out of the loop, but this week we're back with a vengeance, and our topic is, "Should public financing continue to be available to candidates for president?". Based on our coin toss, I will argue that public financing for national campaigns has outlived its usefulness if, indeed, it ever had any.

Our recent election brought this issue to the forefront in a surprising way. The Republican candidate, Senator McCain, opted to accept public funds, while the historically cash-strapped Democrats prodded Senator Obama to forego public funding. The Democratic strategy, fueled by Democratic National Committee chairman Howard Dean, proved to be an overwhelming obstacle to Sen. McCain's ability to compete for expensive media time, and many pundits are convinced that, once again, this election was won and lost on the ledgers, not at the ballot box.

Sen. McCain, however, had little choice but to opt for public money. He was, after all, the co-author of the famous (or infamous, depending on your point of view) McCain-Feingold Act, more properly known as the Bipartisan Campaign Reform Act of 2002. President Bush signed the act into law on March 27, 2002, making it the first meaningful revision to laws pertaining to public financing of elections since the first such measures began being administered by the Federal Elections Commission (FEC) in 1976 (see www.fec.gov/pages/bcra).

It is important to note that 1976 was not the year that this issue came to the forefront. In 1966, Congress passed legislation that would have provided public money to Presidential candidates by funneling funds through the political parties. According to the FEC, the law was suspended a year later, for obvious reasons (www.fec.gov/pages/brochures/pubfund). In fact, not even in 1966 were Americans first prodded to look at such a system. Fifty-nine years earlier, according to the FEC, Theodore Roosevelt proposed that public financing of national elections was the only means through which a fair result could be obtained.

Roosevelt's argument in 1907 was the same as that which resonates today - money, and I mean big money, perverts the political realm and insures that only the wealthy and well-heeled can attain high office. To the founding fathers, service was expected and personal gain was set aside. But by Roosevelt's time, special interests had already begun to pervert the process and political chicanery had become commonplace. Thus the argument was, and remains today, that public financing is the only way to assist a candidate with modest means to aspire to greatness in the political arena.

I don't buy it, no pun intended. I agree, as I assume the vast majority of our readers and Americans in general do, that money has indeed become a corrupting influence in the political realm. And the fact that Barack Obama raised more than half a billion dollars to compete for a job that pays $400,000.00 a year raises the simple question, "Why?"Our system has been co-opted by special interests, to be sure, and the money is the driving force. But it's relevant to note that, according to the New York Times and Fox News (organizations that don't often find themselves in agreement, editorially speaking), the average donation to the Obama campaign was less than $90.00.

The most money raised in any political campaign in history, and the average donor gave ninety bucks. Do the math. It's clear that, in spite of our cynicism and anger over how lobbyists, corporations, unions and radicals on the right and left have dominated the money grubbing and media hype, the common man and woman still care enough to fork over a few bucks to support a cause.That's democracy in action, the little person stepping up to help the candidate who best represents his or her values, beliefs and interests on the national level. But that citizen, passionate for a candidate or a cause, has no control over how the federal government doles out his or her tax dollars to presidential aspirants. In other words, your taxes may be going into the campaign coffers of a candidate you find totally repugnant.

I know I don't like that. I assume you don't either. But I also don't like the system the way it is, or was, where money drives politicians to say anything it takes to get elected, to crawl in bed with whatever special interest has the most umph, and then to claim high moral standards as a reason to earn my vote. So the idea of using tax-payer dollars to fund campaigns was based on noble ideals. But as so often happens in the political realm, the best intentions often produce the worst results.

This is a complicated issue on several fronts. Dating back to the 1970's, challenges to restrictions on fund raising and expenditures in political campaigns have hinged on the First Amendment's guarantee of free speech. In 1976, the U.S. Supreme Court issued a ruling in the case of Buckley v. Valeo which upheld the notion of restrictions on certain campaign fund raising as "primary weapons against the reality or appearance stemming from the dependence of candidates on large campaign contributions." However, in the very same ruling, the court recognized the validity of free-speech arguments, stating, "virtually every means of communicating ideas in today's mass society requires the expenditure of money." Restrictions on this form of free speech, the court said, could only be justified in the case of an overriding governmental interest (see http://www.campaignfinancesite.org/court/buckley.html.)

In this seemingly contradictory ruling, the court did not spell out what constitutes "overriding governmental interest," but the concern was balancing a group or individual's right to participate in the electoral process with the need to prevent graft and corruption within that process. I submit that this balance, and indeed all the concerns expressed in Buckley and cases brought subsequent to this ruling, can be addressed by common sense regulation of private sector contributions to candidates and parties.

I would accomplish this by instituting two major reforms to the current system which I believe would render public financing unnecessary. First, Congress should enact legislation that prevents a candidate for federal office from soliciting or accepting contributions for his or her campaign for a period of time equal to half the term of the office sought. In other words, a candidate for the office of president, which carries a four-year term, could not officially form a campaign committee or raise and spend outside contributions until two years prior to the general election. This is important because, while we prepare to inaugurate the man we elected this month to serve for the next four years, National Public Radio has reported that former Arkansas Governor Mike Huckabee is in Iowa, planning his strategy for a 2012 run for the presidency (All Things Considered, November 22.)

Nothing in the legislation would impede a potential future candidate such as Governor Huckabee from traveling around making speeches. It would, however, prevent political parties, corporations or wealthy individuals from contributing to a campaign fund in the candidate's name.

The second and equally important aspect of this reform would identify, once and for all, who may or may not contribute to national candidates and how much that candidate can lawfully raise. An individual's campaign would be allowed to raise no more than ten times the amount of the salary paid by the office aspired to during the course of one term. In other words, a candidate aspiring to attain the presidency, and its $400,000.00 annual salary, could raise and spend no more than $16 million. That money could be raised through donations from individuals not to exceed $2000.00, or corporations, unions, or parties not to exceed $50,000.00.

While these sums may seem paltry compared to the massive amounts of money currently spent on national campaigns, a shortened political season would mean less money would be necessary. Such a system as proposed would also serve to level the playing field for third-party candidates, or those with less name recognition.

There is one argument that public-finance proponents offer that would not be addressed under a system such as I propose. That is the notion that unheralded candidates with modest financial means and no name recognition could not compete. I would submit this argument is flawed for two reasons. One, it is false on its face. Raise your hand if you had ever heard of Ron Paul before the Republican debates first aired. Very few hands in the air. But the Texas Congressman set a single day financing record, raking in more that a million dollars over the Internet after his first debate performance.

Secondly, a young state senator from Illinois, from a very modest background and without a war chest, went from virtual unknown to President-elect in four years due to nothing more than his eloquence and perseverance. Proof positive that gifts of style and substance can overcome, at least in the short term, a lack of money or power.

In closing, I believe we can all agree that our political system, with its reliance on massive amounts of money and influence, is broken. The answer lies not in turning the system over to the government, or by completely deregulating the system. As is often the case when things are complicated beyond the capability of most citizens to understand, we should strive to simplify this system while relying on citizen participation, not taxpayer funding, to select our leaders.

Our Apologies...

We're sorry. We know we have been a tad lax lately at blogging. The truth is that our readership appeared to drop off pretty drastically after Dano's injury and the subsequent posting hiatus; maybe it was just a drop in participation. We are trying to get back into a regular schedule, now.

On that note, however, there is something we want to address: For this blog to be successful, we need for visitors to actually comment on our posts, not just read them. Why, you ask?  Because blog traffic for the purposes of 1) getting listed and spread by blog catalog services, 2) being noticed by news organizations who scan blog activity to locate bloggers of interest to highlight, and 3) appearing more relevant to education providers (whom we would like to appeal to so they will incorporate our blog in argument and persuasion curricula) is determined by the volume of comments by visitors, not just the number of site visitors.

We have been told by a number of non-commenting visitors that they enjoy reading our posts, but don't want to participate because they "feel unqualified" to comment. "I'm too stupid." "You guys are so serious." "I don't have the time or energy to research my own opinion." Etcetera.

For those of you that feel these ways, let us say this: We don't ask that everyone who comments first researches the issues presented. That's what we do. Those who do comment are only asked to give citations for any "factual" assertion made that is (or may be) debatable. This request is made for two reasons. First, we are trying to preclude the possibility that our blog project turns into a parade of opinion rants like so many blogs are. Second, research helps nearly everyone learn more about the issues than they knew already, which adds to the overall quality and value of the dialog between participants.

That said, there is nothing wrong with simply saying, "this is just my opinion, but...," or with simply writing "I enjoyed the post. It makes me think more about the subject."  We also welcome any valid criticisms of our site design, our posts, our skills, our logic, or our content. One of the great thrills of debate is the opportunity to defend or even modify one's opinion or point of view.

Those of you who have commented regularly are very much appreciated. We also appreciate those of you that visit regularly, but don't leave comments. It's just that we really wish you would. We'd love to be able to consider our efforts worthwhile in the final analysis.

One more thing...we are now going to accept guest post submissions from those of you that have a substantive and contentious point of view on a socially important issue, and wish to have your position discussed. Any submissions of this kind should be emailed to danojohns@aol.com for publishing consideration. In the event that one is selected for a weekly debate topic, either Dano or Reed will take a different point of view to foster the debate.

Finally, we owe another apology to those of you who have been expecting our posts on the previously advertised topic of government subsidized healthcare. It turns out that it was too consuming a topic for our modest time availability. So, despite that we think it is a great topic, we will not be tackling the subsidized healthcare issue at this time. This week's topic, instead, will regard U.S. campaign finance issues--the source of heated disagreement  between John McCain and Barack Obama during this year's presidential campaign. Our posts should be up in two or three days.