Co-written with David Cohen
It is wrong to squander the public outrage. This is a particularly grievous error given that the public outrage about the flood of private monies into public hands is rather limited to begin with.
Following several Supreme Court decisions, which removed most of the remaining limits to the amounts of money special interests can contribute to election campaigns, selling legislation has become even more prevalent. We are moving from one-person, one-vote to a system that is centered around one-dollar, one-vote. Gov. Perry for example, has recently been reported by NPR to have granted hundreds of millions of dollars of taxpayer monies to those corporations dealing with cancer research -- who gave him large campaign contributions. This is not an isolated example; our cottage industry of exposing campaign finance donors and the legislation they influence has produced truckloads of other cases.
To stop this trend, a few legal mavens have come up with the idea that we should pass a constitutional amendment that would overturn recent Supreme Court decisions such as Citizens United v. FEC and McCutcheon v. FEC by giving Congress and the States the constitutional authority to regulate campaign finance, which in effect meant that very little regulation is in place. Such an amendment is deemed necessary because whatever laws Congress has enacted are declared unconstitutional by the Supreme Court, on the grounds that giving money is akin to speech, and is protected by the First Amendment. The problem with this approach is that it is easier for a rich man to go to heaven than for a constitutional amendment to be passed. These amendments require either a two-thirds majority vote in both houses of Congress or a constitutional convention called by two-thirds of the State legislatures.
Even the few legal mavens who tried to rally the public behind such an amendment have had second thoughts. These days, they focus on a new strategy. They have now set up their own Super PAC, called Mayday, with which they plan to support the election of candidates that will vote to curb the flood of private money into public hands. However, as Politico reported when it examined such campaigns, the sums the reform Super Pac granted to each of the candidates they endorsed were relatively small. Moreover, the candidates' commitment to support reform once they are elected was astonishingly weak and -- they would face hundreds of others opposed to such reforms.
Above all, it is necessary to indicate what reforms one is seeking rather than merely call for "reform." We favor a majoritarian strategy (instead of the super majority a constitutional amendment requires) that focuses on substance that can draw the support of those members of Congress who recognize a broken and corrupt existing campaign finance system that must change.
A true reform should include at least the following three elements: (a) banning all Super PACs, whether George Soros or the Koch brothers, those of corporations, or labor unions; (b) combining small individual contributions, say no more than $250, with public financing of general elections (this approach has been already road tested in 14 states); (c) agreeing on a binding ethical standard for members of Congress that will expect them to avoid conflicts of interest.
Another approach entails dealing with the court by expanding the definition of corruption. While the Supreme Court threw out laws that limit campaign contributions, it acknowledged that such contributions should not be allowed if they caused corruption. To wit, it stated that the 1976 case Buckley v. Valeo was "recognizing a governmental interest in preventing quid pro quo corruption" when it upheld limits on direct contributions to candidates. However, the Roberts court's definition of corruption as "quid pro quo" is very narrow, entailing only the direct exchange of money for legislative favors, and leaving out indirect forms of corruption such as improper influence or access. There are scores of ways exchanges of cash and favors can be arranged without a direct and open deal, as the Perry example illustrates. One way to proceed is for citizens harmed by legislation that is clearly titled in favor of special interests that made large campaign contributions to sue the corporations involved for having bribed politicians, and let such cases work their way up the court system. In this way, the Supreme Court would be given a chance to extend its definition of what constitutes corruption from merely "quid pro quo" to one that more closely fits how influence-buying actually works in U.S. politics.
The court is not immune to public concerns. Hence, if instead of squandering the public outrage on constitutional amendments or political fantasies like the Super PAC to end all Super PACs, reformers would focus on calling for curbing corruption -- an issue that speaks much more to the public heart than the procedural issues raised by campaign contributions -- we may see that day when those who make campaign contributions will be limited to those who truly support the candidate rather than seek to raid the public till or to buy legislation.
David Cohen was President of Common Cause from 1975-81, Chaired Global Integrity from 2005-2010, and counsels domestic and international social justice groups.
Amitai Etzioni is a University Professor at The George Washington University and author of Hot Spots.