A constitutional fix to the campaign finance cesspool?

It hasn’t gotten much attention, and I have no reason to believe that it will succeed, but six senators have introduced a proposed amendment to the U.S. Constitution that would authorize Congress to regulate campaign fund-raising and spending.

It’s very hard (as it probably should be) to amend the Constitution. A proposed amendment must pass both houses of Congress by a two-thirds margin and then be ratified by three-fourths of the states. The six sponsors of this campaign finance amendment are all Democrats. Except in extraordinary circumstances, constitutional amendments cannot climb the tall mountain of the ratification process without enduring bipartisan support. Bipartisanship — and even moreso bipartisanship about changes to the electoral process — is rare these days.

Still, given the Supreme Court rulings that have declared campaign contributions and spending to be a form of speech (therefore protected from regulation under the First Amendment) and declared that corporations and other associations are “persons” with a right of free speech, there is little that Congress can do to restrain the enormous amounts of money that flood the campaign coffers of candidates and greatly amplify the voices of those with the money to buy the amplifiers.

The Amendment as proposed wouldn’t solve the problem. It would only assign to Congress the power to regulate the raising and spending of money to influence federal elections (and constitutionalize the same power to states for state elections). Absent such an amendment and given the Supreme Court decisions (most recently in the 2010 Citizens United ruling), there seems to be no practical way to tamp down or slow down the monetization of politics.

The lead author of the amendment is Sen. Tom Udall of New Mexico. Here is his statement, which begins:

“We cannot stand idly by and watch our elections be fundamentally degraded by a flood of unaccountable money into the system.”

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Comments (18)

  1. Submitted by Paul Brandon on 11/03/2011 - 10:54 am.

    The real question is whether the amendment (I’m waiting for it do download) can cover third party spending on ‘issue’ ads that don’t mention a specific candidate by name, but are clearly targeted at a specific candidate or political party.
    It seems to me that there’s an inevitable conflict with the first amendment, which would probably also have to be supplanted.
    I’ll comment again once I actually see the thing and don’t find the answer self evident.

  2. Submitted by Greg Kapphahn on 11/03/2011 - 11:52 am.

    Elections today are played out in the media and, since the average person, no matter who nor how brilliant his/her ideas might be, lacks resources to accomplish massive media access, and…

    since recent experience has shown that even the best ideas can be drowned out under a barrage of false and misleading Rovian, Luntzian, “GOP ministry of propaganda” (but I repeat myself) talking points and outright lies,…

    influence over elections is exclusively controlled by those with massive financial resources.

    I have long believed that, considering the multiple Supreme Court decisions in favor of nearly ALL campaign spending as unlimited “free speech,” a constitutional amendment is the ONLY viable way to move back to “one person, one vote” from our current system which clearly has become:

    ONE DOLLAR, ONE VOTE (i.e. $Billions = massively powerful, and undue, influence over the politicians and policies of our nation).

    Will such a proposal fly? I can only hope, because lacking something along these lines, those with all the money will destroy our nation in their vain search for satisfactions their psychological dysfunctions,…

    (the same dysfunctions which drive them to become fabulously wealthy, by any means necessary, in the first place)…

    render them incapable of ever experiencing.

  3. Submitted by Dennis Tester on 11/03/2011 - 12:24 pm.

    Why should congress, office holders themselves, be in a position to decide who gets what for campaign cash? It’s a conflict of interest. But then again, much of what they do is a conflict of interest.

    The republicans oppose limits on spending as a matter of principle. In a free society there is no limit on free speech including campaign contributions just as there are no limits to the barrels of ink or pages of newsprint a newspaper can buy.

    If the republicans didn’t really believe this, they’d be trying to pass a law to stop Obama from raising a billion dollars for his re-election campaign. Obama is the guy, after all, who first promised he would accept the public money provided to presidential candidates ($84 million in 2008) but instead raised and spent almost $750 million, much of it from untraceable online sources.

    Maybe the democrats could kick off their constitutional amendment campaign by using the president as an example and shaming him into acknowledging his campaign financing excesses.

  4. Submitted by Jon Kingstad on 11/03/2011 - 01:13 pm.

    I appreciate the motives behind this proposal but can there be any question that this is being proposed for symbolic or political purposes to get Senators and Congresspersons on the record on campaign finance reform. Still, as Eric points out, this proposal bypasses the real problem with Citizens United. I’d like to see a Constitutional Amendment proposed that would make clear that “corporations” or other juridical entities, are not “persons” under the Fourteenth Amendment.

  5. Submitted by James Hamilton on 11/03/2011 - 02:46 pm.

    I’m going to go out on a limb here and venture a guess that few actually have read the entire Citizens United decision. It’s neither short nor easy to digest. The dissent and concurring opinions aside, it’s a reasonably well thought out analysis of free speech, in my opinion.

    Reasonable minds certainly can differ as to whether the court actually needed to go where it did in deciding the questions before it and those looking to pin a judicial activist label on a conservative court might not find a better example than this, but when you get right down to the ultimate decision, there really wasn’t anywhere else to go.

    If we have the right to free expression as individuals, then we have the right to free expression as groups of individuals. Ultimately, our political parties are no different in that regard than are our unions and corporations, public and private, non-profit and for-profit. In each case, we’ve come together to accomplish a presumably lawful common purpose. Those purposes usually require the exercise of the membership’s right to speak without fear of government censure.

    The fact is that getting one’s point across in any way other than standing on a soupbox in a pubic square always has required assets. If you wanted to print a broadsheet, you either owned a press or paid the printer. If you wanted to speak to voters on the other side of the town/county/state/nation, you paid to get there. Today, media time costs money. Limiting what one can spend on spreading one’s words inevitably limits what one can say and the number to whom it can be said.

    The reaction to Citizens, in my view, is not about corporations as citizens; it’s about the perceived disparity in power and, frankly, the effectiveness of well-funded speech. Get over it.

    There are ways to respond to well-heeled opposition funded by large entities, corporate or otherwise. Organize your own people; join unions, parties, etc. that support the position you favor. Use the media available to you to call foul when necessary. When your opponents hide behind newly born entities with high-minded names, pull back the curtain and show the world who’s holding the microphone. If you’re invested in a retirement fund, tell the managers of that fund to speak up at annual meetings with the boards of corporations in which your funds are invested. Buy a few shares of corporations and speak your piece at shareholders’ meetings. Don’t, however, give Congress the power to regulate how well you can broadcast your own message.

    The proposed amendment would give Congress the power “to regulate the raising and spending of money and in kind equivalents with respect to Federal elections, including through setting limits on (1) the amount of contributions to candidates for nomination for election to, or for election to Federal office; and (2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates”. Really? One can only imagine what Congress would consider “in-kind” contributions. Volunteer time? The number of doors on which I can knock or the letters I can write? Yes, they sound silly. But when did that stop either Congress or a state legislature?

    Give them an inch and they’ll take the country.

  6. Submitted by Joe Musich on 11/03/2011 - 03:02 pm.

    Firstly are there not limitations on free speech? Secondly, corporate identity or personhood was initially established as an insentive to stimulate investment. Should corporate petsonhood still be looked in that way or have the times changed in that corporations now need not search for investment ?

  7. Submitted by Paul Brandon on 11/03/2011 - 03:32 pm.

    OK — finally saw the amendment.
    It appears to be limited to contributions to candidates, and thus would not address the issue of ‘issue ads’ purchased by third parties. Admittedly, the preamble looks general enough to cover anything, by the main body seems more restricted.
    I’ll leave it to constitutional lawyers to sort out the details.
    The actual wording:

    MCG11359 S.L.C.

    1 ‘‘ARTICLE
    2 ‘‘SECTION 1. Congress shall have power to regulate
    3 the raising and spending of money and in kind equivalents
    4 with respect to Federal elections, including through set-
    5 ting limits on—
    6 ‘‘(1) the amount of contributions to candidates ….”

  8. Submitted by Eric Paul Jacobsen on 11/03/2011 - 04:03 pm.

    1. I would allow each candidate running for public office to receive no more than $5 per contributor.

    2. I would also require every major broadcaster to devote 10 hours of free airtime to multi-partisan debates in each election cycle, moderated by the League of Women Voters.

    3. Full disclosure of funding for all paid speech of every kind, political or not, would include a “Surgeon General’s warning” on every paid advertisement, indicating the number of people who actually endorsed the ad with their own signatures. A full list of these signatures would be available to any citizen upon request, provided by the broadcaster or newspaper publisher who ran the ad.

    4. The penalty for a violation of these rules would be (1) permanent banishment from public office, (2) permanent revocation of a broadcasting license, or (3) a fee equal to 100 times the cost of the ad, respectively.

    I would support any Constitutional amendment that would make these three reforms constitutional.

    Note that reform (3) give the government no power to decide what is or is not an “advocacy” ad or an “issue” add, because it covers all advertisements. Therefore, it is purely content-neutral.

    Money is not speech, and speech is not money. Saying that freedom of speech entails the right to buy as many ads as you can afford is like saying that human rights entails to right to buy as many people as you can afford.

  9. Submitted by Dennis Tester on 11/03/2011 - 04:15 pm.

    Re: MCG11359 S.L.C.

    Free people generally don’t support constitutional amendments that give the government more power.

  10. Submitted by James Hamilton on 11/03/2011 - 08:08 pm.

    @9: The vast majority of amendments since the Bill of Rights have granted Congress new powers. Presumably, we were a free people when these amendments were ratified by the States.

  11. Submitted by James Hamilton on 11/03/2011 - 08:29 pm.

    @8: Merely saying money is not speech does not make it so. It took money simply to speak your piece here. Do you want government to oversee when, where and how often you can speak your piece? Should it do so for the party of your preference? The proposed amendment would permit that.

    Although we like to tell ourselves that it is not true, that our nation is somehow above it all, money has controlled this country since day one. Why? Because those who had it could afford to spend what it took to persuade voters to fall in line, whether behind a candidate, a constitution or a piece of legislation. Sometimes the money came from corporations, sometimes from wealthy individuals. Other times it came from unions, populist movements, or the pockets of blue collar workers. (Take a look at Beard’s Economic Interpretation of the Constitution of the United States (1913) for a discussion of what he describes as the founding fathers’ attempts to protect their own financial interests.)

    Your analogy to slavery fails completely. Among other reasons, we have the right to free speech and, since the adoption of the 13th Amendment, do not have the right to own other human beings.

  12. Submitted by Dave Eischens on 11/03/2011 - 10:59 pm.

    Yes, as this article and the comments to it illustrate, we live in a very interesting time.

    Three points:

    The first is one I think we can all agree on: Our system is pretty messed up at this time. Whether you believe it’s government or corporations or our oligarchy that are inherently soul-less and evil, things are very complex. Solutions don’t fit on a bumper sticker.

    The second is whether a corporation = a living/breathing person. The answer is plainly obvious unless you twist your argument into legal pretzel logic and obfuscate reality. But even more obviously, if you step back from the fray, no constitutional rights ought apply to corporations since they are merely a legal fiction, not flesh and blood. They were designed for another purpose, that of our capitalist economy.

    The third is whether money = free speech. Since the U.S. lives in a media-induced euphoria and herd mentality, it’s easily manipulated to make decisions against its common best interest. Only takes a couple focus groups and polling of “concepts” to sell the masses that up is down and wrong is right.

    Hopefully we’ll all remember people once believed the earth was flat and not make the same mistakes.

    This amendment is but one attempt to define a government of the people, by the people. There will be more. And I believe the Occupy Movement illuminates that the U.S. citizenry has reached a tipping point where the status quo cannot stand. The Tea Party is actually on the same page but their energy has been very masterfully co-opted by the Norquist/Rand conglomerate into Mr. Tester’s Reaganesque fallacy that government is the problem.

  13. Submitted by Dennis Tester on 11/04/2011 - 08:02 am.

    Yeah Dave, because giving government more power is the solution.

  14. Submitted by ken wilkowski on 11/04/2011 - 08:22 am.

    Corporations are not people !Money is not speech!

  15. Submitted by Jon Kingstad on 11/04/2011 - 08:52 am.

    James @#5: You say “but when you get right down to the ultimate decision, there really wasn’t anywhere else to go” for the Supreme Court. Yes, there was. It was to say a law which regulates the money spent by corporations and unions is a reasonable restriction on the freedom of speech. The First Amendment only says “Congress shall pass no law. . .” The First Amendment has not prohibited Congress or state governments from restricting speech in other areas, like “time place and manner restrictions for picketing, handing out leaflets, protesting, etc. By saying, people can make films like “Hillary”; they just can’t give their money to corporations to do so. Citizens United is a blatantly political and anti-democratic (small “d”)decision crafted by a reactionary Supreme Court to further entrench the power of the wealthy over the government. The Supreme Court could reverse itself, like it has done in many areas and like the right wants it to do on cases like Roe v. Wade. A constitutional amendment would be better either like the one proposed by these Senators or one excluding “corporations” from the meaning of “person” or both. Nobody has any illusions of any of these things happening anytime soon.

  16. Submitted by Paul Brandon on 11/04/2011 - 09:47 am.

    Money may not BE speech, but free speech is meaningless unless people hear it. In the modern world this requires money.
    I know about the internet (after all, I’m posting on it right now), but relatively few people will read this post unless it goes viral, which is unlikely.
    If I wanted guaranteed broad internet circulation I’d have to pay megabucks for an ad on Google.

  17. Submitted by Eric Paul Jacobsen on 11/04/2011 - 10:29 am.

    “Merely saying money is not speech does not make it so.”

    Yes. Hence the proposed amendment.

    “It took money simply to speak your piece here.”

    Yes, but my piece is not an ad. Since my piece is not an ad (that is, I did not pay MinnPost to publish it), it would not be regulated by any of the laws that I myself have proposed, all of which are content-neutral, that is, give the government no right to make any judgements about the substance of what anybody says or writes.

    Since we all know that money is needed to publish our words, I doubt very much that any law would try to limit the total amount of money that is spent on all media. This would be doomed to fail, anyway, because the result would be a booming illegal-media market, dominated by the very same flacks who dominate the legal media market today. What campaign-finance reform intends to limit (or at least, what *I* intend to limit) is the amount of money spent PER PERSON on the ELECTION CAMPAIGN of a POLITICIAN. This is a very narrow restriction. It would not even prevent a politician from spending huge amounts of money, provided that he or she also attracted the support of a correspondingly huge number of sponsors and was willing to disclose their names. That is as it should be. If we allow politicians to raise unlimited amounts of money from secret sponsors, then what we’re asking for is to be governed by the mafia.

    “Do you want government to oversee when, where and how often you can speak your piece? Should it do so for the party of your preference? The proposed amendment would permit that.”

    No, it wouldn’t, because one amendment cannot negate another, and the First Amendment would not be eliminated.

    Moreover, as I have mentioned earlier, I am not paying anybody to print what I am writing. Therefore, the restrictions on advertising that I have proposed above cannot stop me from writing or publishing whatever I like. They only restrict how much I could be PAID, by secret sponsors, to say or to write. This would prevent me from saturating the air waves with my own message, unless I could attract a large number of paying sponsors and would agree to disclose their names to the public. But that’s okay with me; I can accept this as a reasonable limit on my public influence.

    Your fear that the amendment would give the government the power to regulate such things as “volunteer time,” “the number of doors on which I can knock” or “the letters I can write” is greatly exaggerated. Volunteer time is (by definition of the word “volunteer”) not paid; therefore, it has nothing to do with money; therefore, the proposed amendment does not empower the government to regulate it. Under the proposed amendment, the government might limit what somebody could PAY you to go knocking on doors on the behalf of a candidate, but it would not limit the number of doors you could knock on in your own free time.

    The “in kind” phrase refers to gifts that are given to politicians to influence them, like money. It does not refer to any kind of political speech. Any attempt to regulate money must cover gifts, too, because if it doesn’t, lobbyists will get around restrictions on cash contributions by buying expensive gifts – with money.

  18. Submitted by Gary Thaden on 11/04/2011 - 10:41 am.

    Individual states create corporations and classify them as a person. Why don’t states reclassify corporations as “corporate citizens” with limited speech rights? State governments created this problem by classifying a non-individual as a person, thus they can take it away.

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