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Senate vs. Citizens United: Democrats push campaign finance constitutional amendment

WASHINGTON — The amendment has the support of Senate Democrats including Minnesota Sens. Amy Klobuchar and Al Franken, but like all amendments it faces an uphill battle to ratification.

REUTERS/Shannon Stapleton

WASHINGTON — A constitutional amendment meant to undo the Supreme Court's recent campaign finance rulings is on its way to the Senate floor — but don’t expect it to go any further than that.

Several Minnesota Democrats have signed on to campaign finance amendment efforts since the court's Citizens United decision in 2010, including both of its senators, Amy Klobuchar and Al Franken, who are co-sponsors of the Senate bill. If and when lawmakers votes on the amendment, it will be only the sixth constitutional amendment Congress has considered in the last eight years, and the first on campaign finance since 2001.

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The amendment isn’t going anywhere this session, given not only Republican objections to the proposal but the daunting odds all constitutional amendments face: they require a two-thirds vote from both the Senate and House, and then ratification from three-fourths of the states to take effect.

But nonetheless, Democrats have said it’s time to try enacting something to respond to the Supreme Court’s recent string of campaign finance decisions, including Citizens United, which allowed for unlimited spending on campaigns by corporations labor groups. Given the court's decisions, an amendment, they say, is the best way to give constitutional validity to any campaign finance law lawmakers might want to pass.

Klobuchar: A 'democratic' issue

The Senate’s bill would give lawmakers the power to “regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.” The amendment's full text is here [PDF].

Both Klobuchar and Franken sit on the Senate Judiciary Committee, which signed off on the bill last Thursday on a party-line vote. Klobuchar said the amendment is a small-d “democratic” issue because it would give Congress the power to keep wealthy individuals and interests from dominating political discourse.

“How can I compete, if someone is able to put in a billion dollars?” she said. “If I look at this from the first amendment perspective, it’s that this big money drowns out my rights to speak, or the rights of my citizens to elect someone who doesn’t have access to that kind of money.”

Franken has said he considers Citizens United one of the worst decisions in Supreme Court history, and he said the amendment would take campaign finance legislation back to a time before the ruling when lawmakers had the power to restrict spending on campaigns.

Proposed amendments

In the last 8 years, Congress has considered just six constitutional amendments.

113th Congress

Campaign finance
S.J. Res 19
Pending

112th Congress

Balanced budget
H.J. Res. 2
Failed House Nov. 18, 2011 261-165

Balanced budget
S.J. Res. 10
Failed Senate Dec. 14, 2011, 47-53

Balanced budget
S.J. Res 24
Failed Senate Dec. 14, 2011, 21-79

111th Congress

None

110th Congress

None

109th Congress

Same-sex marriage ban
H.J. Res 88
Failed House July 18, 2006, 236-187

Flag-burning ban
S.J. Res 12
Failed Senate June 27, 2006, 66-34

Source: Govtrack

“It simply restores the law to what it was for decades, before Citizens United changed everything, when people could say enough is enough and take some reasonable steps to keep money from corrupting the democratic process,” he said at a June hearing on the amendment.

House Democrats have introduced campaign finance amendments as well. Rep. Keith Ellison carried one in 2011 that would have allowed Congress to regulate campaign spending specifically by for-profit corporations and entities. The bill went nowhere.

Rep. Rick Nolan introduced a constitutional amendment last year with a far more sweeping goal: not only would it give lawmakers regulatory power over campaign spending, but it would also narrow constitutional protections such as freedom of speech and religion to individuals — not corporations.

“We’re beginning to see the disastrous effects of this situation, where the Supreme Court has ruled that corporations are people and money is speech and wealthy individuals and corporations can spend unlimited amounts of money in campaigns and elections,” Nolan said.

Two views on the Senate bill

Senate Democrats have promised to bring their amendment to the floor sometime before this fall, where it will surely fail. Republicans have called it an election year ploy — a bill with no chance of passage meant to force them into voting for something potentially politically popular — and they’ve strongly opposed the bill.

Republicans have viewed the Supreme Court’s decisions as validations of, rather than dangers to, first amendment rights. They have opposed numerous attempts by Senate Democrats to beef up campaign finance disclosure requirements, and they have called the amendment an affront to free speech.

Sen. Chuck Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, argued the amendment would give Congress broad power to regulate all sources of political speech, from individuals to non-profits to political parties. He called the amendment “elitist” and argued lawmakers could abuse their power to write campaign finance laws favorable to their own incumbency.

“Speech concerning who the people’s elected representatives should be, speech setting the agenda for public discourse, speech designed to open and change the minds of our fellow citizens, speech criticizing politicians, and speech challenging government policy are all vital rights,” he said at a committee hearing last week. “This amendment puts all of them in jeopardy.”

On the other side, a group pushing a campaign finance constitutional amendment says the Senate proposal doesn’t go far enough.

Kaitlin Sopoci-Belknap, the national director of Move to Amend, said the Senate bill is too shallow. She said that if lawmakers are to ever pass a constitutional amendment, they should look to address the court’s underlying reasoning behind its campaign finance decisions — that corporate entities are entitled to the same rights as the people that make them up. Her group is backing Nolan’s proposal.

“All the [Senate] bill does is allow government to regulate campaign spending, which is a good component, that’s what Citizens United undid, but if we’re going to pass a constitutional amendment, we really need to use this opportunity to create a mechanism for much more systemic solutions,” she said.

Senate considered campaign finance amendment in 2001

Lawmakers have proposed half a dozen campaign finance-related constitutional amendments this session, though all except the Senate version are expected to languish. Even so, Democrats and reform groups say a constitutional amendment is the only way they’ll be able to undo the court’s campaign finance decisions.

“It seems to be our only alternative, to amend the constitution of the United States,” Nolan said.

Amending the Constitution, of course, is rare — it’s only happened 27 times in American history. And Congress rarely even considers constitutional amendments. Since 2001, lawmakers have only voted on nine amendments on the floor, according to Govtrack, and none passed.

The Senate last considered a campaign finance amendment in 2001. The proposal would have given lawmakers the power to “set reasonable limits on the amount of contributions that may be accepted by, and the amount of expenditures that may be made by, in support of, or in opposition to, a candidate” for office. The final vote was 40-56.

Campaign finance advocates have considered amending the constitution since the Supreme Court's 1976 Buckley v. Valeo decision striking down a federal law barring independent expenditures in political campaigns, Sopoci-Belknap said. Her group has tried to convince Congress to support a constitutional amendment for about four years, since Citizens United, and more than 600 communities have passed resolutions calling for an amendment, she said.

But she acknowledged success is a long ways off, and Democrats in Congress are under no illusions their amendment will pass this session, either.

“Maybe this will not pass as a constitutional amendment now, but there have been other constitutional amendments that have taken a long time to become part of our constitution,” Franken said in June. “Maybe by presenting this, we may make some progress.”

Nolan said the same, that even seeing the bill come to the floor would be a step in the right direction.

“I think the right way to do it is to continue to push and have patience and have hope,” Nolan said. “This is one of those things that has to happen if this country is going to survive.”

Devin Henry can be reached at dhenry@minnpost.com. Follow him on Twitter: @dhenry