By now, anyone with a scintilla of public spirit knows the names of Adelson, the Koch Brothers, Mercer, and the mammoth corporations from Wall Street, the banks, the oil companies, big Pharma, big agriculture, and the like. If you are of the older generation, as I am, you remember when you and those who thought like you clucked over the millions that were being spent in political campaigns. How quickly the change in a single letter signified our movement to campaigns of millions. Now it’s billions. 

Distinguished professors from Princeton and Northwestern, as well as leading public figures like former New York Mayor Michael Bloomberg and former President Jimmy Carter have suggested we have crossed the political Rubicon. What may have been the world’s greatest constitutional democracy has become what Aristotle called an oligarchy, or rule by the few. Can we reclaim what we once were? Can we recross the Great Divide between a democratic and an oligarchic state? It will be extraordinarily difficult to do so, but I am hardly the only commentator who believes that the first step back to constitutional democracy requires that we deal with the excess of money in our politics. I suggest that there is a way of thinking about this issue that has not yet been advanced. But first, some background.  

Years ago, a husband and wife were simultaneously graduated from the political science Ph.D. program at UCLA. The husband’s name was Vincent Ostrom who was so well thought of that many schools offered him employment. He settled on Indiana University, the school that I later went to for my Ph. D. Vincent’s wife, Elinor, was not recruited but she followed him to Bloomington, becoming a housewife and mother of two, seemingly never to enjoy a career. 

One day the political science faculty held its semi-annual scheduling meeting. No one seemed eager to teach a 7:30 AM American Government section.  Vincent offered that Elinor would be willing to teach it and, after much grumbling, the boys relented and the other Dr. Ostrom was penciled in for the class. Thirty-five years later, Prof. Elinor Ostrom became the first, and still the only, woman to win the Nobel Prize in Economics. Her studies of how various cultures preserved their common resources were unique in economic study. Micro-economic, price theory types such as those at Milton Friedman’s University of Chicago, were horrified. Her being my Philosophy of Science professor at Indiana University was as much an indispensable segment of my education then as it is a part of this writing. 

Some years before the above, I had received my JD from Northwestern University’s School of Law.  Though I was not overwhelmed with the education, I confess that over the years a few legally trained public figures earned my respect, perhaps none more than the former Supreme Court Associate Justice John Paul Stevens, a fellow Northwestern Law School graduate. I trailed him by fifteen years. Those who deplore the 2010 decision in the Citizens United v. F.E.C. case, which flung the door open to the wholesale buying of our politicians, may recall that Justice Stevens penned an eighty-page, legally trenchant, dissenting opinion.  

With due respect to Justice Stevens as well as the many citizens groups that have subsequently critiqued the case (Move On, Public Citizen, etc.), I suggest that we must move beyond arguing that a corporation is not a person, and that money is not speech. There is another layer. It embraces what I believe to be the deepest understandings of the original seven articles of the Constitution and the Bill of Rights, and the highest understandings of the nature of knowledge itself, or what I learned from Elinor Ostrom.  

What is called the Pyramid of Knowledge is not a part of either America’s political or legal canon. But certain kinds of knowledge are more important than others. The Pyramid of Knowledge that Prof. Elinor Ostrom taught us contains the highest strata of knowing. It deals with the forms, or shapes, of knowledge. All knowledge has a form to it, much like the cave wall characters that Plato wrote of in The Phaedo. Regarding the campaign finance issue, what is most important is that the original seven constitutional articles and the Bill of Rights possess very different forms. 

I submit that the original seven constitutional articles are what philosophers call analytic in their form. America’s political structures, with their separation of powers, federalism, bi-cameralism, staggered elections, and separation of personnel between the executive and legislative branches (Article One, Section Six), are about as centrifugal, or decentralized, as they could be. The Philadelphia Founders imposed an arms’ length, or contractual, form of interaction upon our constitutional institutions, not wishing for the citizenry easily to aggregate. James Madison candidly argued as much in his # 10 Federalist. More on this later.   

The Bill of Rights is altogether different. Although the locus, or place, of the Bill is individual, that is rights are possessed by singular citizens, the telos, or purpose, of the Bill is aggregative in its form. It is designed to facilitate individuals’ joining together to foster what they consider to be the common weal. The guarantees of free speech and free press, the right to petition, and the right to associate all protect collective political activity. Forbidding soldiers involuntarily to lodge in your home protects political intercourse from prying eyes. Forbidding unreasonable search and seizure protects correspondence that might include political opposition. Forbidding testifying against oneself protects the identity of political allies as well as the testifier, while the right to a speedy trial protects association with those whom one might give up rotting in a cell. Protections against cruel and unusual punishment, similarly, shielded the disclosure of political allies. Again, all of these rights are aggregative in their form. 

But beyond the above depictions of the First, Third, Fourth, Fifth, Sixth, and Eighth Amendment, the Seventh Amendment is also aggregative, but in a very different way. Here, a jury’s determination that a debtor suffered what even the conservative Alexander Hamilton described as a “hard bargain” could not be overturned by what were expected to be Federalist, creditor-friendly, appellate court judges. This amendment specifically responded to the structurally contractual Section 10 of Article One which forbade state legislatures, like those in debtor-friendly Rhode Island, from “impairing the Obligation of Contracts” with moratoriums, the alteration of terms, and the like. A jury’s protected inclusion of something new in a contract is synthetic in its form.   

Why is the above important for campaign finance? Put simply, a small political contribution, say $100, and a large contribution, say $100,000, are not only different quantitatively; they are different qualitatively. They are of very different forms. While the $100 contributor begs for additional, aggregating contributions, summing to something significant, the $100,000 contributor wants no assimilation with other contributors. She wants a contractually formed interaction with the recipient, mirroring the original seven articles’ structurally contractual interactions. The form of the $100 contribution, again, is aggregative. The form of the large contribution, at the apex of the Pyramid of Knowledge, is analytic, a solitary but powerful quest for political influence with a campaigning office-seeker. What the Harvard Law School educated Chief Justice John G. Roberts Jr. and the majority associate justices in Citizens United mistakenly argued was that large contributions were protected as free speech. They did not consider that First Amendment’s free speech protections are synthetic in their form. Large contributions are contractual. They are not protected speech. 

Let me honestly concede that the thinking that underpinned the above analysis is part of something larger. I am a theorist. I taught political theory classes and I am generally an admirer of the classical figures who contributed to political philosophy through the years. But I would like to think that I am more than a student of political theory. I began, many decades ago, to create an original political philosophy. The theory is best labelled as The Natural Left. It is based on cognitive preferences within the general population, or the differences in how people think. In short, I explored whether the classical notions of the analytic and synthetic forms, as they existed in philosophy and various subfields, were something more than abstractions. Maybe they were, in some Jungian sense, also reflections on how different human beings reasoned. 

For example, what may have been the two greatest philosophers since the Greeks, the German Idealists Immanuel Kant and Georg Wilhelm Friedrich Hegel, held differing views over whether the equation 5 + 7 = 12 was an analytic or a synthetic statement. Kant labelled it synthetic. Hegel thought it was analytic. What kind of mind made Kant think that 5 + 7 = 12 is a synthetic cognition? My answer is that Kant possessed the kind of logical, deductive, even linear mind in which any differentiation was found to be sufficient to be called synthetic. The fact that two integers, 5 and 7, were on one side of the equation and only one integer, 12, was on the other, was, for Kant, a significant differentiation. Kant believed virtually all mathematics to be synthetic. 

One generation later (Kant died in 1804, Hegel in 1831), G. W. F. Hegel argued that the two-on-one-side/one-on-one-side differentiation was not a sufficient differentiation to warrant status as a synthetic cognition. Recall that Hegel created a speculative, dialectical model of history, one that reached boldly into the future with quantum leaps from one intellectual paradigm to the next. For such leaps, Hegel argued, you needed a robust differentiation. Hegel chided Kant’s depiction of the 5 + 7 = 12 equation as synthetic, noting that all entities in the equation were of the same quality; they were all numbers. Indeed they were, I once suggesting that a true synthetic cognition needed to be something like 5 + blue, that is, a whole integer with a primary color. From such churlishness, and some serious exploration into the analytic and synthetic forms as they existed in different human minds, I developed my theory of the Natural Left.  

And so, back to campaign finance. Please recall that the United States Congress passed maximum contribution limits in its campaign finance legislation of 1971 and 1974. No, the Congress did not envelope their limits in a wrap of differentiated cognitive forms. Neither Kant nor Hegel, nor the 5 + 7 = 12 equation, were discussed on the Hill.  But it would not be a stretch, I submit, to think that the Congress, at least intuitively, understood that the small campaign contribution and the large campaign contribution were horses of different colors. What is not arguable is that the Congress drew a line beyond which the individual contributor could not pass. Neither is it arguable that the Congress did not reverse the long standing legislative prohibition of corporate contributions. Enter Lewis Powell.  

Those of the older generation will remember that the 1968 Republican presidential candidate, Richard M. Nixon, made the 1960’s hippies, the permissiveness of society in general, and the Earl Warren liberal Supreme Court in particular, the bete noires of a troubled society. Nixon believed it was time for the conservative “silent majority” to regain control of the country. No writing was probably more persuasive in setting the conservative’s course of national redemption than a formulaic piece written by a Richmond, Virginia corporate lawyer named Lewis F. Powell, Jr.   

Powell, to be fair, had had a reputation as a compromiser. But he was no compromiser when he responded to the call of the Chamber of Commerce to draft a strategy to take the country back to conservatism. Long story short, Richard Nixon read the report, loved it, and, surprise, Lewis Powell wound up on the United States Supreme Court. Space does not permit a summary here but let me note that, in great part because of the newly minted Associate Justice Powell and two of the three other justices that Nixon appointed, Congress’s attempts to modulate the kind of campaign finance excesses required by exploding television budgets began to be whittled away by the Chief Justice Warren Burger Supreme Court.  

The case we should never forget is the opening shot challenge to Congress’s regulation of moneyed influence in political campaigns—Buckley v. Valeo (1976). In that case, the compromiser, Justice Powell, made a distinction that he believed would fit the Solomonesque mold. Powell separated the free speech issue as it related to campaign contributions from the free speech issue as it related to campaign expenditures. One Associate Justice, Byron White, had the temerity to find the label the distinction specious White argued that the court’s principal goal should be “to equalize access to the political arena” by not protecting candidate contributions or individual contributions not made in concert with the campaign, as Powell’s majority ruling had done. 

From 1976, right up to directly before Citizens United, it was clear what direction a conservative Supreme Court was taking in the campaign finance arena. In the last moments of sanity, you could see widening cracks in the wall. In FEC versus Wisconsin Right to Life (2007), for example, three of the most conservative justices, Scalia, Thomas, and Kennedy, wrote a separate opinion, stating that Section 203 of McCain-Feingold legislation, which prohibited issue advertising in periods before an election, should be overruled. Chief Justice Roberts and Associate Justice Alito upheld Section 203, although they still served as part of the quintet that made up the majority in WTRL, striking down pre-election McCain-Feingold regulation. You didn’t need Nostradamus to know what was coming next. 

The short of it is that Justice Powell’s use of the contribution/expenditure paradigm, and even Justice White’s laudable rejection of that dichotomy, both failed to touch the pinnacle of the Pyramid of Knowledge. Neither described the form of either the contribution or the expenditure. As above, Buckley’s nose under the tent missed the mark entirely, the cognitive form at the pinnacle of the Pyramid never appearing. Neither discussed the size differentiations of either contributions or expenditures. Did Powell take us off the scent of the central issue intentionally? 

We will never know, but we can retrace Hansel and Gretel’s bread crumbs all the way back to 1976 and confront the current excesses in campaign spending from a wholly different perspective. There is another layer, once again melding the highest forms of knowledge with the most basic understanding of the Constitution. Immodestly, I believe it to be time for bringing an intellectual creation of this sort to the wholly undemocratic electoral processes that increasingly plague our nation. Like Article One and Amendment # 7’s response to it, if the conservatives would exclude the highest level of constitutional analysis, we progressives have every right to include it.