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Jay Mandle Headshot

We Don't Need a Constitutional Amendment

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The Supreme Court's 2010 Citizens United decision has placed the American political process ever more in the hands of rich oligarchs. It has not however done so in the way that most people expected.

Most of the discussion in the aftermath of Citizens United centered on the Supreme Court's extending an unfettered right to corporations and unions to make political contributions to independent political groups. The worrisome vision was of businesses using their huge treasuries to unleash virtually unlimited funds against their political opponents.

Overlooked was the fact that very soon after Citizens United, the principles that lay behind that decision were applied to individuals as well. Based on the Citizens United precedent, an Appeals Court ruled in Speechnow.org v. FEC that it was unconstitutional to limit or regulate individual contributions to independent organizations. To do otherwise, the Court said, would violate the First Amendment's free speech provisions.

As it has turned out, it has not been corporations (or unions) that most have taken advantage of the new opportunities to buy political influence provided by these two court cases. Fabulously rich individuals are the ones who have most benefited. The current election cycle has revealed a pattern in which a few people make huge contributions to "Super PACs" -- ostensibly independent organizations that are in fact aligned with specific candidates. By virtue of the funds lavished on them, Super PACs have become major players in election campaigns.

As of the last reporting period, the Super PAC supporting Mitt Romney, Restore Our Future, received 28 contributions of $500,000 or more, yielding over $20 million. But only six of these contributions, amounting to $4 million, came from corporations. The rest came from individuals. One donor provided an astounding $3 million, while seven others donated $1 million each. A similar dominance of individual contributors is present for Super PACs aligned with the other candidates for the Republican presidential nomination, as well as for Barack Obama's Priorities USA Action. In the latter case however, the largest contributors included a union, the SEIU, which, along with two individual donors, gave $1 million.

What has happened, in short, is that a handful of individuals has become immensely empowered politically as a result of the Supreme Court decision.

The Court consistently has justified its rulings by positioning itself as a defender of free speech. Its argument is that political expression requires money and that therefore political contributions are a form of speech. The result is that political donations are permitted except where they clearly do damage. In the Court's formulation, this occurs only when contributions represent corruption or the appearance of corruption.

But what is just as significant as what the Court says is what it has not said. It has never ruled that the public funding of campaigns is unconstitutional. It has objected to triggering mechanisms by which public funding is increased in response to well-endowed privately funded candidates. But dating back to its early rulings in the 1970s and in its Citizens United decision as well, the Supreme Court has consistently affirmed the constitutionality of voluntary systems in which candidates have the option of running for office using public funds.

The door therefore has been left open for legislation that could offset the growing political inequality resulting from the Court's libertarian stance with regard to political donations. A generous publicly funded option to run for office with money provided with tax dollars would not only be constitutionally acceptable but also would counter the growing concentration of political power of those making gargantuan political donations.

As a result, it is a mistake to overreact to Citizens United. In the first place, corporate political contributions are not the immediate problem. And in the second place, a call for a constitutional amendment stating that political donations are not speech and therefore should be banned, weakens the reform effort. It risks losing those advocates of greater political equality who would see in it an unjustified attack on free speech. It is not likely therefore that a powerful enough political movement to change the constitution could develop.

The trend to political oligarchy can be reversed. But the strategy to do so must be one that posits the objective of greater political equality and at the same time provides the basis for building a coalition that can win. A constitutional amendment is not the way to go; a voluntary public funding system holds out the greatest promise of rolling back the tide of political inequality.