2. n. An incredibly good, and perhaps very time-consuming, piece of work that produces exactly what is needed.
Definition of “hack,” Free On-Line Dictionary Of Computing.
“Hacking might be characterized as ‘an appropriate application of ingenuity.'”
The Meaning of ‘Hack,'” The Jargon File.
During a time of perhaps unprecedented partisanship in U.S. politics, Americans largely agree on at least one issue. A broad and growing consensus contends that money and its influence pose an existential threat to the democratic process, and this consensus has only strengthened in the midst of a historically rancorous presidential race.
In a recent Bloomberg poll, 87% of potential voters agreed that campaign finance reform is necessary. Another 78% stated that the Supreme Court’s widely lambasted Citizens United decision, which established the right of so-called super PACs to spend unlimited amounts of money on elections, should be overturned. These sentiments are echoed on the campaign trail: Bernie Sanders, Hillary Clinton, and Donald Trump have all sharply condemned the Supreme Court case and called for campaign finance reform. (Indeed, among the current front runners, only Ted Cruz has defended Citizens United, claiming that the Supreme Court didn’t go far enough in protecting campaign expenditures as a valid exercise of the First Amendment.). President Obama openly criticized the ruling during his 2010 State of the Union Address, just days after it was published.
It is readily apparent that Citizens United has fast become a rhetorical bogeyman conjured by politicians seeking support. But the same politicians offer precious little detail on how the ruling might be circumvented, so that campaign finance reform may actually be accomplished. Completely absent from the campaign rhetoric is any real effort to describe a viable strategy for either (1) getting the Supreme Court to overturn the case; or (2) amending the Constitution — that is, the two possible paths available in the American political system for overriding a constitutional law ruling from the Supreme Court, such as Citizens United.
Neither path is easy. Amending the Constitution requires a two-tiered process where 3/4 of the states must ratify a proposal adopted by either (1) a 2/3 supermajority of both houses of Congress; or (2) a national convention called by 2/3 of the states. In a day and age where congressional gridlock is the norm, not to mention bitter partisanship within and among the states, it is difficult if not utterly impossible to imagine building the coalition required to amend the Constitution anytime soon.
As for a Supreme Court reversal, the prospects appear inherently rosier; as opposed to a constitutional amendment, it requires only a majority of Supreme Court Justices to agree to overrule Citizens United in an appropriate case. But as with any lawsuit, procedure is just one part of the picture and, in isolation, substantially overstates the likelihood that Citizens United could be judicially cast aside in the foreseeable future.
Indeed, any consideration of this possibility must start from acknowledging that a strong resistance to overruling precedent is pressed into the DNA of the American legal system via the doctrine of stare decisis. As Chief Justice John Roberts wrote in his concurring opinion in Citizens United, “Fidelity to precedent — the policy of stare decisis — is vital to the proper exercise of the judicial function.” And Justice Anthony Kennedy wrote for the majority that, “Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.” The primacy of stare decisis means that examples of the Supreme Court overruling itself are not only infrequent but usually occur long after the original decision, with time spans measured in several or many decades. (Citizens United itself overruled a 20-year old precedent, Austin v. Michigan Chamber of Commerce.).
Stare decisis aside, the possibility of overruling Citizens United depends on having a majority of Justices inclined to do so. Right now, there is a 4-4 split between Justices for and against Citizens United, if one assumes Justice Kagan (who replaced Justice Stevens) would vote to overturn it. While the Republican-controlled Senate seems steadfastly opposed to meeting with (much less approving) Merrick Garland, the President’s nominee to replace the late Justice Scalia, it is hardly obvious that Garland, if approved, would join a majority to overrule Citizens United. In fact, in 2010, as a judge on the D.C. Circuit, Garland joined that court’s opinion in SpeechNow.org v. FEC applying and expanding the holding of Citizens United to strike down limitations on individual contributions to PACs as unconstitutional. This line of reasoning is diametrically opposed to the view that Citizens United was wrongly decided.
With an unclear path to overruling Citizens United and an even more torturous route to amending the Constitution, Americans might have to accept that at least for the short term, there is no realistic legislative or judicial path to removing money from politics. But this realization should not be cause for hopelessness. Because the political system has been corrupted by money, money is a system vulnerability. That vulnerability can be exploited. As explained below, I believe the system can be hacked, and the hack can make the system better.
On February 22, 2016, my wife Elizabeth and I became the proud directors of a new super PAC. The process to create a super PAC was surprisingly simple and while we are both attorneys, it certainly didn’t exhaust any of our legal skills to do so. It was as easy as filling out a five-page form and electronically filing it with the Federal Election Commission — no fee required. As the immediate purpose of our super PAC was to support the Bernie Sanders’ campaign, we called it Do The Right Thing, in homage to Spike Lee, who had just endorsed Sanders. (Later, we changed the name to JamPAC, inspired by the concept of “culture jamming” as well as Bernie’s skill on the basketball court.).
Our pro-Bernie super PAC was born after Elizabeth spent weeks volunteering for the campaign — she called voters, went to rallies and “Bernstorms,” and organized phonebanks at our law office to get out the vote in the Democratic primaries.
Elizabeth had started to seriously “Feel the Bern” after being thrust suddenly into the national political discourse due to a well-publicized altercation with Donald Trump. At the time, we could scarcely believe that Trump — a businessman of dubious integrity and success who fled from Elizabeth’s presence screaming when she asked to take a pre-arranged medical break — now had a legitimate shot at the Republican nomination. The prospect of a Trump presidency caused us to seriously scrutinize which Democratic candidate was best-equipped to stop this nightmare scenario from happening. For us, the answer was plain — Bernie, not Hillary Clinton, presents the sharpest contrast to the corrupt self-interest of billionaires and corporations so thoroughly embodied by Trump.
JamPAC was borne out of a desire to communicate to a much larger audience than could be reached by the traditional volunteer activities of canvassing, phonebanking, and holding up signs on the street. As we watched a mainstream media blackout of Sanders coverage take hold (a blackout as pervasive as the same media’s appetite for Trump is voracious), we felt a need to disseminate pro-Sanders messaging via alternative media channels and social networking. With urgent speed, we connected with a passionate and talented group of filmmakers, artists, and like-minded Bernie supporters. One of JamPAC’s initial projects was to produce Proud Latinos For Bernie (directed by Ricardo Villalba and Christopher Schrack of DC-based Washington Digital Media), which was the very first Spanish-language video summarizing Bernie’s platform for a Hispanic audience.
JamPAC continues to release pro-Bernie videos by independent filmmakers and will do so through the end of the campaign. We are constantly searching for innovative ways to deliver impactful messages to voters, and have already branched into graphic art and video games.
At the same time, JamPAC’s focus has expanded from raising awareness of Bernie and his platform to investigating and reporting on relevant campaign issues as they arise. Indeed, the mainstream media blackout has not only impeded general voter awareness of Bernie’s candidacy, but blocked widespread reporting of the myriad election irregularities that have plagued the Democratic primary thus far. To combat the information firewall, JamPAC is producing a unique video serial called House On Fire, following the investigation of former Bernie volunteer and social media celebrity Niko House into disturbing evidence of “dirty tricks” perpetrated against the Sanders campaign during the early primaries. The trailer for House On Fire can be viewed below.
A Super PAC By And For The People
JamPAC owes its very existence to one man’s presidential bid, an endeavor to which it is singularly devoted at present. Given Bernie’s avowed opposition to super PACs, the notion of a super PAC supporting him might seem problematic for the Sanders campaign platform, at least from a superficial vantage point. But JamPAC’s ultimate aims transcend any single campaign or candidate. Rather than embodying the conventional model of a fundraising organization at the service of a candidate, JamPAC seeks to disrupt the very concept of a super PAC by re-configuring the super PAC as a force for good — one which strives to restore the voice of the people to politics by rescuing American democracy from the corrosive stranglehold of entrenched elite interests.
In other words, we see a revolution in super PACs, through JamPAC, as part and parcel of the broader “political revolution.” The transformative potential of JamPAC derives from the two big “C’s,” which set it apart from the conventional super PAC model as deployed by corporations and billionaires. These are (1) Crowdfunding; and (2) Collaboration.
Contributions From The Crowd, Not The 1%
Since the introduction of Indiegogo and Kickstarter in 2008 and 2009, respectively, crowdfunding — a method of financing an enterprise via the collection of many small contributions — has quickly become a significant engine for business innovation. Various crowdfunding platforms enable entrepreneurs to fund ideas where more conventional financing is unavailable or cost-prohibitive. It is estimated that crowdfunding alone raised over $34 billion in 2015, more than the entire venture capital industry.
The Sanders campaign, which to date has raised $140 million with 66% of campaign donations coming from small individual contributions (less than $200), has been heralded as the arrival of crowdfunding to politics — an “alternative model for crowdfunding presidential campaigns.” (The Nation, October 1, 2015). By enabling broad-based support across economic dividing lines, crowdfunding maximizes individual participation in the campaign financing process. JamPAC translates campaign crowdfunding to the Super PAC, thereby creating a democratic counterweight to “big money” super PACs such as Priorities USA Action (pro-Hillary Clinton) and Right to Rise (pro-Jeb Bush).
Collaboration, Not Manipulation
Aside from enabling corporations and the 1% to control our elected officials through the power of the purse, conventional super PACs undermine American democracy via the media content they produce along with the attendant mode of production. The conventional paradigm roots itself in a passive vision of the American electorate. According to the model, super PACs (as well as the campaigns themselves) produce messaging for the consumption of the electorate, disseminating it through the traditional mass media channels (television and radio). The voter is reduced to a passive consumer of media, whose choice at the ballot box is framed and directed by the omnipresent and overwhelming media messaging. By its nature (and in full accord with the interests of the corporate/1% class), the conventional paradigm seeks to displace any role for the voter as an active participant in the political process, whether via deliberation, association, expression, or other forms of engagement.
Instead of relying on and reinforcing the gulf between active participant (super PAC) and passive consumer (voter), JamPAC seeks to bridge the gap by integrating collaboration as an essential element in the production process. JamPAC relies upon independent artists, not corporate-affiliated ad agencies, to create content. By drawing on the extant passion for Bernie Sanders within the independent creative community, JamPAC ensures the act of producing content is itself an act of individual expression and thus political engagement.
Collaboration is further nourished by distributing JamPAC’s content strictly over social media, rather than the traditional mass media channels. An active presence on Facebook permits voters to interact with and form a virtual community around the content — in stark contrast to the anonymous and passive consumption of television ads promoted by conventional super PACs. The legal regime governing super PACs reflects the latter’s dependence on the voter as passive consumer — indeed, the definition of “electioneering communication,” as applied to super PACs, expressly excludes “communications over the internet” while limiting its scope to “a communication that is publicly distributed by a television station, radio station, cable television system, or satellite system.” (11 CFR 100.29(b)(1), (c)(1)).
In contrast, JamPAC seeks to harness the Internet’s potential for user engagement with the ultimate aim of crowdsourcing the messaging of its content. By fostering participation in the very process by which the messages are created and then disseminated, JamPAC promotes a vision of the actively engaged voter as opposed to a passive consumer of media subject to manipulation.
JamPAC likes to think of itself as a political experiment. If the experiment is to succeed, it will be because the technological tools that have so quickly transformed entire sectors of the economy can now be deployed to resuscitate our moribund political system. A positive transformation might mean that one day, there will be a whole constellation of super PACs organized on the JamPAC model– organizations that are grassroots, fully engaged with the electorate, and representative of the entire ideological spectrum — that will supplant the frustratingly gridlocked and morally bankrupt political parties as the site of American democracy. Armed with technology and a vision of a better future, super PACs like JamPAC can do for politics what Uber has done for transportation and Airbnb has done for hospitality. As things stand, Citizens United has left us with little choice but to hack the system from within.
Jared H. Beck has a B.A. from Harvard College, an M.A. from the Harvard Graduate School of Arts and Sciences, and a J.D. from Harvard Law School, where he was an editor of the Harvard Law Review. In addition to serving as co-founders and co-directors of JamPAC, he and his wife, Elizabeth, own and operate a law firm, Beck & Lee, in Miami. Beck & Lee dedicated to the practice of business, personal injury and real estate litigation, as well as pursuing the rights and remedies of small businesses, consumers and investors through class actions. He is a member of the Florida and California Bars, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. Beck can be reached at 305-234-2060 or firstname.lastname@example.org