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

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.

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

Comments (12)

  1. Submitted by Thomas Swift on 07/14/2014 - 11:43 am.

    ““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…”

    “Franken: $5.9M in campaign funds”

    http://www.startribune.com/politics/255258531.html

    Franken isn’t against piles of cash; he’s just against anyone having a bigger pile than he has. But that’s not to say he’s unique, he’s no different than any other politician talking out of both sides of his mouth.

  2. Submitted by Connie Sullivan on 07/14/2014 - 12:10 pm.

    Mr. Swift no doubt believes that, while he tries to find us a good way out of the deep Constitutional trouble caused by the denial of free speech rights to those without tons of money, Senator Al Franken should stop his own campaign fundraising and risk losing his Senate seat.

    Franken is simply playing by current rules and standards. That he wants to change them for the better is all the more reason to support his re-election.

    • Submitted by Ron Gotzman on 07/14/2014 - 12:59 pm.

      better?

      “That he wants to change them for the better is all the more reason to support his re-election.”

      “Better” for his campaign or for “free speech?”

      Also – we need to restrict the free speech rights of some so others will have free speech?

      • Submitted by Matt Haas on 07/14/2014 - 01:53 pm.

        Restricted how exactly?

        Nothing about campaign finance reform limits anyone’s ability to say whatever they’d like about any candidate they’d like. Everyone is entitled to get up on their soapbox and have at it, as an individual. All the amendment would do is equalize the size of the soapbox, and ensure that the entity using it is in fact an actual living breathing individual. Why do you think the wealthy are entitled to a greater voice in elective democracy than the poor?

        • Submitted by chuck holtman on 07/14/2014 - 03:08 pm.

          But to answer Mr Gotzman’s question more directly,

          Absolutely. Place limits on the freedom of some for the greater freedom of all. That’s sort of the core of what society is about. Self-government cannot exist without free speech, but also cannot exist with absolute free speech.

          The principle also underlies 200 years of Bill of Rights jurisprudence. All individual constitutional rights may be regulated to serve a “compelling state interest.” There is no more compelling state interest than preserving the conditions under which self-government is possible.

          Of course, if enough citizens were informed and critical-minded, money would become irrelevant. Fox and the establishment media would cease to exist; folks would see the charlatans, grifters and sociopaths for who they are; and people with the talent to advance policy in the public interest could stand for office and be elected even without the backing of concentrated economic interests.

    • Submitted by Thomas Swift on 07/14/2014 - 01:39 pm.

      “denial of free speech rights to those without tons of money”

      When people expressing opinions are getting frisked for cash, and having their mouths duct taped should they fall short of the necessary “ton” of money, you’ll have a valid point. In reality? Not so much.

    • Submitted by Dennis Tester on 07/14/2014 - 03:41 pm.

      How do we know?

      How do we know Al Franken actually is in favor of “political equality?”

      Maybe he should divide his campaign fund equally amongst he and his opponents. That would be a fair test of his sincerity, would it not? Why should he benefit from the Hollywood money when his opponents do not?

  3. Submitted by Dennis Tester on 07/14/2014 - 01:34 pm.

    Any attorney who would vote for this amendment

    should surrender their law degree.

    Not surprisingly, the party of huge government’s proposed amendment violates the existing 10th Amendment and actually gives more power to the federal government. It would be the only constitutional amendment to do that.

    It’s instructive by this fundamentally flawed text that they are essentially admitting that all existing campaign finance laws are unconstitutional and that these laws impose arbitrary limits on the speech that is the foundation of political liberty, unregulated by government.

    [Their text] “To advance democratic self-government and political equality …” The mission of this nation and any free society is not to pursue political “equality,” but to guarantee political liberty. Political equality could mean, for example, an equal number of congressional seats to be distributed according to race or gender or age or hat size. So right out of the box, their rationale is misguided and un-American.

    [Their text] “and to protect the integrity of government and the electoral process …” If the democrats were really concerned about the integrity of the electoral process they would be proposing a constitutional amendment that required a voter to prove they are an American citizen eligible to vote in that district, as the last step before casting their vote. That would protect the citizenry’s right to a vote that’s not invalidated by an illegal one. But of course, democrats would vehemently oppose such a measure, proving they have no interest in the integrity of the electoral process.

    It’s ironic that the party named for the democratic process has so little interest in seeing it actually working.

    [Their text] “Congress and the States may regulate and set “reasonable limits” on the raising and spending of money by candidates and others to influence elections.” – What’s a reasonable limit? Isn’t that a bit vague? Would Eisenhower have believed that the $1 billion Barack Obama spent in 2008 and 2012 were “reasonable?” Since no one from his party ever raised questions about the appropriateness of that number, I guess we can assume that a billion dollars to run for president is reasonable.

    Bottom line, this text gives MORE power to government and LESS to the people, pursues political equality over liberty, and defines government’s regulatory powers in ambiguous terms, all of which would be unprecedented as an amendment to the U.S. Constitution.

  4. Submitted by jason myron on 07/14/2014 - 01:54 pm.

    Don’t worry , Ron…

    Corporate mouthpieces would still be able to find plenty of avenues to lie without being challenged on a variety of talk shows hosted by right-wing, mouth breathers….with a tailor made audience of hate-filled, xenophobes ready and willing to lap it up.

  5. Submitted by Gerald Abrahamson on 07/15/2014 - 11:37 am.

    If elections are supposed to be about candidates and issues,

    then take away the money difference and force them to run on the issues the candidates claim to represent. Having an EQUALLY limited campaign budget for each candidate makes for a fair election. No one candidate has a financial advantage that allows him/her to “appear” more popular because none can afford to buy more advertising and hire more PR staff to run/manage their campaigns.

  6. Submitted by Eric Paul Jacobsen on 07/24/2014 - 02:52 pm.

    Keep it simple.

    Corruption equals dollars divided by donors. It’s a simple equation. And it points to a simple solution: Effective campaign-finance law will limit the number of dollars that any donor can legally contribute to influence the political process.

    Presently, the Supreme Court recognizes two different and very un-democratic equations: Money equals speech, and corporations equal people. This plutocratic pattern of interpretation is a throwback to the aristocratic prejudices of our country’s founders and a reversal of centuries of progress toward a more inclusive democracy. And it poses a barrier to the simple solution to corruption outlined above. As difficult as it may be do remove this barrier by amending the Constitution, it must be done.

    There is much that we can do in the meantime. It is not unconstitutional to require full disclosure of the sources of campaign funding. I do not believe it is or ought to be unconstitutional to require full disclosure of all sponsors of advertisements, either. We don’t have the power to petition the government anonymously. Therefore, we shouldn’t give anybody the power to influence the government anonymously, either. This goes for all sponsors of paid advertisements. The government shouldn’t have to bother distinguishing “political” ads from non-political ones, or “advocacy” ads from “issue” ads. Full disclosure of all sponsors should be required for ALL ads, regardless of content. It would be a boon for us all, not only as citizens, but as consumers as well. Keep it simple.

    As John Fugelsang said, “You don’t need an ID to buy an election, just to vote in one.” If we care about democracy, we must not tolerate this imbalance.

  7. Submitted by David Markle on 07/20/2014 - 11:02 am.

    Balancing Act

    Reasonable, sensible regulation of campaign financing and spending may be a limitation of sorts on free speech, but lack of regulation leads to the undermining of due process and equal protection.

Leave a Reply