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Alan B. Morrison

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It's Not Just Citizens United

Posted: 03/ 6/2012 1:27 pm

The 2012 campaigns are awash with millions of dollars, and we are still nine months away from Election Day. Editorial writers and columnists are decrying the situation and invariably blame it on the Supreme Court's 2010 decision in Citizens United v. FEC. While that ruling is one of the culprits, our elections would still be drowning in money even without it.

Don't get me wrong. Citizens United was wrong in so many ways. It freed up for-profit corporations to make unlimited independent expenditures supporting or opposing candidates for office by extending First Amendment protections to non-voters, and treating campaign spending by businesses as no different from pure speech by individuals. And it completely fails to take into account the vital public interest in seeing that there is some balance in our elections and that for-profit companies do not dominate them, a special concern in states that elect their judges.

Although it is sometimes quite difficult to tell the real source of some of the spending, it appears that less than a third is coming from corporations, with the rest of the big money coming into the primary races is from millionaires. In the most open example, Las Vegas casino owner Sheldon Adelson gave $5 million not once, but twice, with perhaps more to come, to keep Newt Gingrich in the race for the Republican nomination. He was able to do that because the Supreme Court said in Buckley v. Valeo in 1976 that individuals could not be prevented from spending as much of their own money as they wanted, both to finance their own campaigns, and to support the election of others, with one caveat: the money for others had to be spent independently and could not be contributed to the candidate's campaign or to his or her party. Back then, no one was doling out hundreds of thousands of dollars, let alone millions to support (or oppose) a given candidate, and so the potential problem was not seen as terribly disruptive.

In the 2004 presidential races, wealthy supporters of John Kerry took advantage of that ruling, and instead of just spending the money on their own, they joined with other like-minded millionaires to provide very large and very effective attacks on President Bush. And, of course, Bush supporters retaliated with their own joint independent spending campaigns. The FEC resisted for a while, arguing that the Supreme Court did not allow the consolidated activity, but the Court of Appeals for the District of Columbia Circuit disagreed, recognizing that adding the right to associate to the right to make independent expenditures was just as proper as doing either one alone. It is these cases, not Citizens United, that have produced the super PACs that are so dominating the political landscape in the Presidential election so far.

Last year, the Supreme Court slammed the door on the one remaining possibility of keeping our elections from being overwhelmed by money. In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, the Court rejected an Arizona law that had been in effect for over a decade under which candidates who accepted public funding agreed to limit their total expenditures. Those candidates were also given additional funding to offset money spent by an opponent who chose not to accept public funding or by independent groups supporting the opponent or attacking the opt-in candidate. Everyone agreed that, without the possibility of some additional funding to counter massive spending by an opponent or outside groups, almost no candidates would choose to disarm themselves by limiting their spending. The Arizona approach, which was in place in several other states as well, would not have been enough alone to counter Citizens United or the evolution of the independent expenditure rule in Buckley, but it would surely have helped.

Where does that leave us? Additional disclosures would be nice, but they will never be enough under the current circumstances. There is no statutory fix that will solve the problem, and no chance that the Court will change its mind on Citizens United. But even if it did, that is only part of the much larger problem. I used to think that we could still have reasonable political campaigns even with Buckley and its progeny, but as it has developed, I am convinced that I was far too optimistic.

For those who think that our election system is fundamentally on the wrong track, the only option is to amend the Constitution to allow Congress and the states to do what is necessary to restore some level of sanity to campaign finance rules. I propose a simple amendment: "Congress (and the States) shall have the power to make all laws reasonably necessary to regulate the financing of elections, and no court shall overturn any such law on the ground that it violates the First Amendment." I love the First Amendment and rely on it often. But it is not the only value in the Constitution, and it should not be allowed to trump every other part when it comes to protecting our basic democratic system.