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Jay Mandle

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Beyond a Constitutional Amendment

Posted: 11/30/2012 3:51 pm

The 2010 Citizens United Supreme Court decision damaged democracy. But the Speechnow.org v. FEC decision by the D.C. Court of Appeals in the same year was even more injurious. Citizens' United permitted corporations and unions to use their treasuries for political purposes. But Speechnow accepted the fiction that unlimited expenditures in support of a candidate are independent of the officer-seekers' campaign. It was this latter decision that opened the floodgates. Because that fiction was accepted, "independent" donations avoided any regulation.

Since many of those political donations go unidentified, it is hard to know how many corporations actually took advantage of Citizens United. Eduardo Porter in the New York Times estimates that about $75 million in independent expenditures came from corporate treasuries. (1) But what is certain is that there was a massive response to Speechnow. The Center for Responsive Politics believes that what it calls "Outside Spending" increased from $147 million in 2008 to over $1 billion in 2012, roughly a seven-fold increase, one that far exceeded the growth in any other category of spending. (2)

A Constitutional amendment has been proposed by some activists as a way to offset the injury inflicted on democracy resulting from those judicial decisions. I doubt that many of the proponents of such an amendment actually believe that its passage can be accomplished in any reasonable time horizon. But that is not enough to warrant a dismissal of the idea. Working on its behalf might serve an educational function. It might act as a vehicle to move the public to become supportive of reforms to reduce the political power of wealth. But if an amendment is to serve that purpose, it has to be carefully crafted and be able to withstand the attacks that are sure to come.

The amendment proposed by movetoamend.org is representative of the suggestions that have been offered. It is composed of three clauses: 1) a corporation is not a person; 2) money is not speech and can be regulated; and 3) this amendment does not abridge freedom of the press. (3)

The crux of the matter is the second section. For while the first reverses Citizens' United and the third is intended to protect media corporations and non-profits, the second aims to broaden the scope of permissible regulation on political contributions and expenditures. At present, under the Supreme Court's Buckley v. Valeo decision, only corruption or the appearance of corruption can justify regulating contributions and no constitutional justification whatever exists to control political expenditures.

A major problem however exists in this regard. For the plain fact is that curbing political expenditures or contributions does limit expression. Engaging in political speech requires money, and free speech is at issue when there are regulations imposed on the use of money to support a candidate or a point of view. There may be good reasons to regulate. But there is also a civil libertarian cost to regulation.

To justify that cost it has to be clear that what will result will be a more democratic system than the one we have now. As written, the Constitutional amendment does not meet that test. What it promises is more rigorous limitations on political spending than exist at present. But what will undoubtedly remain is a system in which political funding still remains a private enterprise. It will too much resemble what we have now. At whatever level limitations are set, politics will remain funded by the few, not the many. Though perhaps attenuated, the ability of donors to set the terms of political debate will persist.

What is lacking in the Constitutional amendment approach is an alternative funding system, one that gives candidates the option of running for office without wealthy patrons. Without a public campaign financing option, it is very hard to make the claim that the kind of Constitutional amendment that is currently being discussed will change the fundamentals of the current system. Because that is so, its proponents will find it difficult to justify curbs on the use of money in advocacy. Not enough is gained in democracy to justify entering the slippery slope involved in limiting the freedom of expression, even of oligarchs.

If a public funding system were sufficiently well financed, it would not be necessary to step onto that slope. After all, what the recent election demonstrated is that though money is the necessary condition for political success, it is not sufficient. What is needed is enough funding to be able to have a candidate's message be broadly disseminated. With such a public funding base coming from tax money, a candidate could have the best of both worlds: a publicly financed campaign that allows him or her to attack an opponent for being beholden to special private interests rather than to the voters, while at the same time avoiding being tainted as an opponent of free speech.

1. Eduardo Porter, "Get What You Pay For? Not Always," The New York Times, November 6, 2012, http://www.nytimes.com.
2. Center for Responsive Politics, "Outside Spending," http://opensecrets.org
3. Move to Amend, "Move to Amend's Proposed 28th Amendment to the Constitution," https://movetoamend.org.

 
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