This month, some of Slate’s favorite legal eagles are proposing their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. We have three proposals about campaigns and elections: Today from Laurence W. Tribe, and tomorrow from Heather Gerken and Richard L. Hasen.
Here also are proposals about the right to trial by jury, protecting informational privacy, amending the Constitution by national referendum, electing the attorney general, moving up the date of the presidential inauguration, restoring the balance of war powers, Supreme Court term limits, forcing Congress to fix the rules of congressional procedure, and a right to health care.
Campaign Finance (New Amendment)
When Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, recently called attention to “the huge sums currently deployed to buy candidates’ allegiance” as cause to revisit Citizens United, it was easy to see why.
In the two years since the Supreme Court struck down key federal campaign finance restrictions, super PACs have reshaped American democracy. It’s not an exaggeration, for example, to observe that billionaire Sheldon Adelson singlehandedly sustained a floundering presidential campaign through donations to Newt Gingrich’s super PAC. In the 2010 election cycle there were 84 active super PACs; now there are 577. These groups have already spent over $120 million, with plenty more on the way. Wealthy opponents of President Obama, for example, have already committed to spending at least $1 billion, much of it certain to be funneled through shell corporations and other entities, making the donors behind the resulting ads invisible to the electorate, though they’ll be all too visible to the candidates who benefit.
Yet the chorus of commentators deriding this phenomenon has overstated the responsibility of Citizens United itself. The fundamental principle underlying campaign finance law since the Supreme Court’s seminal 1976 ruling in Buckley v. Valeo—that Congress could regulate contributions to campaigns but could not lawfully cap individuals’ independent political expenditures—leads logically and unmistakably to the rise of super PACs. It’s true that for a brief moment earlier this decade, after President George W. Bush grudgingly signed into law the McCain-Feingold campaign finance reform bill, Justices Sandra Day O’Connor and John Paul Stevens led the court in upholding limits on “soft money” raised by political parties. O’Connor and Stevens wrote together to endorse regulation to check undue access to officeholders, as well as efforts to prevent outright corruption. And Citizens United cut off this budding development. But the 5-4 ruling did so as a return to, rather than an unprecedented departure from, the path set by Buckley.
It is for this reason that I call not simply for narrowing Citizens United, but for drawing upon the passionate discontent triggered by that decision to rethink entirely the rules for campaign finance regulation within our constitutional order. This is a particularly worthy enterprise given that the composition of the court prefigures little chance of a swift change in direction, whether or not the court decides to revisit Citizen United in the pending challenge to Montana’s carefully crafted limits on corporate campaign expenditures. I propose an ambitious amendment along the following lines:
Nothing in this Constitution shall be construed to forbid Congress or the states from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures. Nor shall this Constitution prevent Congress or the states from enacting systems of public campaign financing, including those designed to restrict the influence of private wealth by offsetting campaign spending or independent expenditures with increased public funding.
My proposed text first lays to rest the fiction, perpetuated for decades in the wake of Buckley, that a just and sensible financing regime can treat contributions and expenditures differently. Expenditures to support or oppose political candidates, however nominally independent—and lately, the purported independence of super PACs has become a national joke—have in practice afforded wealthy people and corporations grossly disproportionate access to holders of public office. To the ordinary voter, this is deeply alienating. And it is anathema to the foundational principle of “one person, one vote,” a doctrine devised to root out unconscionable disparities in voter access to fair legislative representation. As Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit recently argued, a fundamental corollary of that precept is the right to have one’s speech reflect one’s passion, not the size of one’s bank account.
Undoubtedly inspired by a similar conviction, critics of Citizens United have proposed several constitutional amendments. Thus far, however, these proposals have tended to miss the mark. One introduced in Congress declares that the First Amendment “does not apply to the political speech of any corporation” with respect to expenditures related to elections. Yet this demonization of corporations to the exclusion of other electoral interlopers is ill-founded. It’s just as bad, for example, for lone billionaires to distort electoral results and gain disproportionate influence. And it’s troubling to lump small corporations with those that accumulate gigantic war chests.
Another congressional proposal, echoing the common retort to Citizens United that “money is not speech,” states that financial expenditures on elections “shall not constitute protected speech.” But some financial investment is essential for almost all forms of speech, and I am not prepared to abandon all First Amendment scrutiny of regulations imposed on financial backing of political expression. What’s crucial is that regulations treat content neutrally, regardless of whether they address speech itself or the funding of speech, and regardless of the speakers at which they aim.
Worse, all the focus on Citizens United has distracted from a potentially more invidious later Supreme Court decision that is an equally worthy target of constitutional amendment: Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. This 2011 decision struck down an attempt, enacted by Arizona voters through petition, to increase public financing for candidates whose opponents raised or spent money beyond an established threshold. Unlike Citizens United, the ruling could not remotely be described as enhancing anyone’s freedom to speak or even to spend money on speech. The court simply reached out to restrict the freedom of states to develop their own way to limit corruption, voter alienation, and the disproportionate access of the wealthy to the candidates they support.
Perhaps the most egregious misstep of the court’s campaign finance case law has been the failure to trust the judgment of our elected representatives that ever-rising sums expended in political races cheapen and thus undercut democracy. Writing for a bare majority of the court, Justice Anthony Kennedy infamously claimed in Citizens United that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” That self-assured appraisal of the mechanics of American campaign finance flouts the common-sense recognition that big donors do not part with incredible sums for purely ideological reasons: They’re after special access, and they get what they pay for.
By ignoring this public consensus, the court erodes the credibility of our constitutional commitment to equality of influence, undermining the foundations of citizen activism.
Recently, the court at least decided to affirm, without comment or dissent, a lower court’s decision to exclude foreign money from campaigns. Justice Stevens has argued that this step represents a “crack in the foundation” of Citizens United, because the court will be unable to justify excluding some nonvoters (foreigners) but not others (corporations). Perhaps. The little-noted theory of Citizens United, after all, was not that corporations enjoy all the rights that ordinary people enjoy but, rather, that the First Amendment protects “speech” and listeners, not particular “speakers.” But this focus on identifying the insiders and outsiders of our American democracy is beside the point. It is the cumulative effect of massive infusions of money, not the identity of the spenders, which leads people to assume that those with greater wealth can buy greater access and influence and thus leads many voters to opt out
Rising to meet this challenge through constitutional amendment will be no easy feat, particularly given the predictable reluctance of Congress to take the necessary action. But it’s been done. A groundswell of support for a constitutional convention proved decisive in pressuring a reluctant Congress to propose the 17th Amendment, guaranteeing popular election of U.S. senators.
If the past several years of tea parties and Occupy protests have proven anything, it’s that Americans still know how to fervently protest. How ironic would it be if the force that unites citizens behind a constitutional commitment to equality of political influence is a case by the name of Citizens United?