POLITICS JANUARY 20, 2012
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At the second anniversary of the Citizens United decision, there can no longer be any doubt—the political world has been changed in profound ways, and for the worse. If there’s a general sense in this election cycle that anything goes—at least in terms of political money and advertising—it’s in part because that Supreme Court decision, which struck down limitson independent political spending by corporations. Lax enforcement of other campaign laws, and the Court’s hint that it might go even further, have also contributed to what is sure to be an ugly, big money election.
Is there any way to correct for the damage Citizens United has wrought? There’s little chance that the Supreme Court will reverse course, not before at least one of the five Justices in the Citizens United majority is replaced. Faced with that reality, a handful of organizations have begun to push for an amendment to the Constitution to reverse Citizens United. On Tuesday, the country’s best-known campaign finance reform group, Common Cause, joined the amendment movement, proposing to place initiatives on the ballot in several states calling on Congress to pass such a constitutional amendment. Unfortunately, this is not only a futile project, but an idea that poses a danger to the cause.
The long-standing movement for campaign finance reform has often been weakened by its tendency to pull in several different directions. A decade ago, reformers were squabbling over whether to focus on limiting contributions to $100, banning soft money at the federal level, or enacting full public financing in the states. In recent years, however, a welcome consensus has emerged in favor proposals for public financing, drawing on successful programs in Arizona, Maine, New York City and Connecticut. A majority of Democrats and a few Republicans co-sponsored the Fair Elections Now Act, based on those successes, in the last Congress. The constitutional amendment movement will be yet another distraction from these efforts.
The main problem isn’t that the effort to pursue a constitutional amendment would be futile—though it certainly would be. Advocates know that, and point out correctly that futility has never, in itself, been an argument against pursuing a constitutional amendment. After all, most efforts to amend the Constitution fail, but the efforts to pass them can have residual benefits, by giving supporters a long-term vision along with incremental steps that can be achieved through legislation or cultural change. The Equal Rights Amendment is the classic example of an amendment that fell short, but gave its advocates an organizing principle and clear goal that allowed them to achieve incremental wins along the way. The legal framework for gender equality is arguably as strong now as it would be if the ERA had been ratified.
A proposal to amend the Constitution to establish a right to vote would have a similar movement-building value. Most people assume the right to vote is in the Constitution, and understanding that it isn’t can lead to a healthy discussion about why we restrict voting in so many ways. A movement for a right-to-vote amendment would give focus to efforts to overturn voter identification laws and allow same-day voter registration.
A movement to overturn Citizens United by amendment, however, would take a different form, because it would be retracting rights rather than expanding them, and thus would have few residual benefits. State, local, and federal laws limiting corporate political spending would still be considered unconstitutional until the day the amendment, after passing both houses of Congress with supermajorities, was ratified by the legislatures of 38 states. By reinforcing the misconception that nothing can be done about the current condition of money in politics until the Constitution is amended, the amendment movement would undermine progress on other solutions, including public financing, improvements in corporate governance to give shareholders more say in political contributions, disclosure improvements, and better enforcement of existing laws by both the Federal Election Commission and the Internal Revenue Service. If it were possible to pass an amendment through Congress and get it ratified by 38 states, it would also be possible to enact full public financing—the optimal solution—at both the federal and state level.
The case against the amendment movement also isn’t based on the text of the amendment—not least because we don’t know what the amendment would say. I’ve found at least five different versions of an amendment, and in introducing its initiative on Tuesday, Common Cause President Bob Edgar said the organization would be “neutral” among the alternative proposals because now was not the time for “wordsmithing.” Call it a movement to pass an amendment to be named later.
That said, the various amendments currently in circulation would all create their own problems. Most of them focus on dismantling the complicated and dubious doctrine of corporate personhood—the idea, which was prominent in judicial decisions in the 1880s, that corporations, despite being artificial creations given certain privileges by government, have all the same rights as individuals. Here, for example, is the key section of an amendment proposed by a coalition called Move to Amend: “Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution.” Another one, from a group called Abolish Corporate Personhood Now, declares that corporations “are prohibited from any influence upon the electoral/political system of these United States.”
There’s quite an irony here. After all, what is Common Cause? What are most of the organizations that make up the Move to Amend coalition? They are corporations. Not just corporations, they are corporations that have been created for the explicit purpose of organizing and amplifying political speech, or of influencing the U.S. political process. Sure, most of them are non-profits (as was Citizens United itself), and another version of the amendment, the one introduced by Senator Bernie Sanders, limits its denial of rights to for-profit corporations. But the distinction between non-profit and for-profit corporations is a blurry one—Blue Cross and Blue Shield insurance companies, as well as many large hospitals, are structured as non-profits, too, and pay their CEOs, and their lobbyists, millions of dollars. The corporate form is simply how we organize any collective effort in the United States.
And while corporations aren’t people, and they can be and should be regulated, such efforts to regulate ought to at least begin with the presumption of a right to free expression. Regulations on corporate speech, just like limits on speech by individuals, have to be justified as serving a valid public purpose. A law, for example, barring all corporations, including Common Cause, from speaking out in favor of campaign finance reform would be a disgraceful encroachment on free expression—but perfectly permissible in a world in which corporations have “no rights.” Are corporations such as Common Cause really willing to endorse the idea that they have no basic right to speech?
Further, “corporate personhood,” while a significant focus of Justice John Paul Stevens’ dissent in Citizens United, is not actually the key to the decision. Lawrence Lessig points out in his recent book, Republic, Lost, that the Court reached its decision in Citizens United “not because it held that corporations were ‘persons’ and for that reason, entitled to First Amendment rights. Instead, the opinion hung upon the limits of the First Amendment.” The Court’s true error was in its narrow definition of corruption. Whether it comes from individuals or corporations, the Court held, independent political spending, not coordinated with a campaign, had little potential for quid pro quo corruption, and thus was protected by the First Amendment. But quid pro quo is not the only kind of corruption there is. The general dependence of elected officials on donors and outside supporters (such as this election’s Super PACs), Lessig argues, creates a broad and unspecific corruption. It results, for example, in members of Congress hesitating to regulate financial firms simply because they spend so much time with financial executives and rely on them for their campaigns.
A broader view of corruption would permit some regulation not only of corporate political spending, but also of spending by individuals. We can’t know for sure, but most of the notable Super PAC funding in the 2012 primaries seems to have come from wealthy individuals, such as casino mogul Sheldon Adelson, on behalf of Newt Gingrich, or Jon Huntsman Sr., on behalf of the recently departed candidate Jon Huntsman Jr. And in the case of privately held corporations such as Koch Industries, it really doesn’t matter much whether the Koch brothers contribute from their personal fortunes or from the corporate treasury they control. Restricting only corporations, while it would undo the specific legal change wrought by Citizens United, would actually do little to change the wild west culture of money in today’s politics.
It’s corruption, not “corporate personhood,” that needs to be at the center of our efforts to change the post-Citizen’s United world of money in politics. The way out would be to build a public and legal case for a broader and more accurate concept of corruption, starting from Lessig’s framework, while continuing to expand workable and constitutionally secure reforms such as public financing. Anything else, such as a campaign for a not-yet-written amendment to the Constitution, is just distracting mischief.
Mark Schmitt is a senior fellow at the Roosevelt Institute and former editor of The American Prospect.
10 comments
How about an amendment authorizing Congress to legislate regarding campaign expenditures? That would get directly at the corruption issue without getting sidetracked by the "corporate personhood" distraction or setting too much policy within the Constitution.
- sighthnd
January 20, 2012 at 8:59am
A constitutional amendment on the right to vote? We have two such amendments, precluding race and sex to deny the right to vote, though nowhere is there a right to vote. I'm curious about the history of those two amendments, and whether the authors considered establishing a right to vote (as opposed to a negative, precluding race and sex to deny the right to vote). I suspect that neither the constitution nor the bill of rights included a right to vote for the same reasons those two amendments were necessary. I suppose a right to vote would have to identify who has the right. Who would that be? Or who would that not be?
- rayward
January 20, 2012 at 9:36am
I enjoyed Schmitt's thoughtful essay. He doesn't though mention the Montana Supreme Court case --I forget its name--distinguishing Citizens United on the basis that the identification of and proving a compelling interest in limiting or banning corporate camapign contributions is by SCOTUS's own reasoning an exception to its holding. The majority then went on to consider the evidence for this ban in Montana legislation and concluded that a compelling case for its necessity had been made out to obviate corruption in Montana's elections. The dissents said in effect that the majority was being creative in its reading of Citizens United and was being pretextual in its refusal to follow it. The case I believe is up on appeal. In Schmitt's listing of ameliorating measures short of constitutional amendment he seems to elide an obstacle: where the measures are aimed at greater transparency in contributions and at adding reporting burdens to them and at increasing shareholder input into contribution decisions--these measures would also have to apply to unions given the ratio of Citizens United--they seem legally unproblematic; but where the measures range from overly impinging on the making of contributions the case allows to the outright undermining of Citizens United, say public financing, then aren't they vulnerable as being unconstitutional?
- basman
January 20, 2012 at 4:30pm
Schmitt does an excellent review of Edsall's book in the NYT Sunday Book Review. Schmitt offers similar criticism (my word) of Edsall's book as I do of Kagan's essay on the decline (or not) of America, namely what to do about the great mass of American workers with limited skills that once found prosperity in an industrial America that no longer exists. Schmitt phrases the issue as follows: "The second [real scarcity] is the limited supply of the kind of jobs that once enabled millions of families with modest educations to move into the middle class. Economists increasingly agree that even after our current crisis ends, structural changes in the global economy will make it harder for those entering the work force to acquire the sort of moderately skilled jobs that boosted the Reagan Democrats of an earlier time." Edsall commits the same offense as Kagan, ignoring the determinative issue of our time. Failure to address and resolve the issue will lead to a future of more economic instability and, eventually, social instability. The issue is right there in plain sight, and is ignored at our peril.
- rayward
January 21, 2012 at 8:18am
01/21/2012 - 8:18am EDT | rayward Relevance here?
- basman
January 21, 2012 at 10:00am
Chris Hayes's Up was good this morning, especially as graced by the intellects of Elliott Spitzer and David Stockwood. One of the best portions was the discussion of Citizens United which Spitzer,a Harvard trained lawyer, put in the context of First Amendment jurisprudence. He as much as anyone deplores the distortion by money of American politics. But he pushes back against the selective vilification of that case, which vilification ignores the values and pressures exerted by freedom of speech in the jurisprudential debate. This all goes to what Spitzer and Stockwood call for as an ultimate solution, public finance of elections, the implementation of, it is argued, needs amending the American Constitution to accommodate the demands of the First Amendment.
- basman
January 22, 2012 at 11:54am
P.S. Part of Spitzer's survey of what has led to the predominance of money in politics was Obama's breaching his promise to finance his campaign on public money, which got an almost reflexive push back from Melissa Harris Perry, who said, contrary, to her usual counter conventional modes of reasoning, I paraphrase, "What does anyone want from Obama, he just did what the law allowed." (Just like Romney in paying tax at 15% on his investment income.)
- basman
January 22, 2012 at 12:12pm
The key argument to amending the Constitution to overturn both Buckley v Valeo and Citizens United is that political contributions may be "speech" but because unlimited contributions--whether to the candidate or independent committees--cause actual corruption, and the perception by voters that the system is corrupt--there's a compelling state interest in in limiting political contributions. I disagree that efforts to amend the Constitution are futile--the Amendment giving 18 year olds the vote passed in less than a year and there's a huge public uproar over the corrupting influence of money in politics There are also discussions going on among the groups supporting various amendments on how to reach consensus on the best Amendment to unify around. And finally, a massive movement to amend the Constitution could, if Obama gets to appoint a replacement to one of the 5 conservative Justices, lay the groundwork for the Supreme Court to reconsider Buckely v Valeo and Citizens United as decisions whose effect turned out to be as pernicious as Plessy v Ferguson and Lochner
- mmogu77
January 22, 2012 at 11:40pm
Schmitt gets ir right but for his headline and conclusion! Schmitt argues correctly that the ruling is profoundly negative. He understands that the current Supreme Court is unlikely to reverse itself and that constitutional amendment proposals, such as the Equal Rights Amendment, historically have been the vehicles by which Americans have our most profound debates about national values. Winning that value debate, with or without enactment of an amendment, is crucial to the success of the campaign reform movement on any front, be it disclosure, public financing, or limiting the use of big money in politics. see full response here http://www.commonblog.com/2012/01/20/the-best-way-to-fix-citizens-united-is-a-constitutional-amendment/#comments Schmitt is correct to focus on the Supreme Court’s Buckley v. Valeo ruling and its narrow definition of corruption as the only legitimate reason to limit big money in politics. This logic has led the court to conclude it is not corrupting for billionaires in the top 1% of society to drown out ordinary citizens so long as they do it through political committees not technically controlled by a candidate. Stephen Colbert and Jon Stewart have entertainingly demolished that logic. Thinking about money in politics solely in relation to it potential use as bribery misses a larger point about political equality. If one percent of citizens can speak so loudly the rest can’t be heard, we cannot engage in meaningful self-government. We do not have a level playing field in the marketplace of ideas when a wealthy candidate like Michael Bloomberg can outspend his opponents by almost incomprehensible sums. Further, a candidate centered rationale lets big money dominate other important democratic forums that don’t involve candidates, such as ballot measure campaigns and issue ads aimed at influencing legislation. But there is an even bigger problem that public financing of campaigns cannot solve. Imagine that you learned that your local branch manager had tapped a dollar from your savings account to buy ads supporting a $2 tax break for every person with a savings account. While this might be in your financial interest, you’d want to evaluate that narrow interest against your broader interest in a society with adequate police, schools, roads, parks, and other public services. Regardless of your ultimate position, you would be outraged that your bank manager took your money for a political campaign without your permission. Citizens United, and its underlying principle that corporations have political speech rights above and beyond the rights of their shareholders, gives a CEO the “right” to take your money as a shareholder to promote political ideas you oppose. The current Court’s five member majority doesn’t view this as corrupting, though a previous six member majority did back in 1990 in Austin v. Michigan Chamber of Commerce. The best way to force the court to adopt new rationales to evaluate limits on campaign contributions and spending and prevent corporations from abusing shareholder rights is through a constitutional amendment that explicitly spells out those rationales. This is why Common Cause is calling for Congress to propose amendment that would "make clear that corporations shall have only the privileges bestowed upon them by their charters; by state and federal law; and the inalienable rights of the real people who are their shareholders or members. Further, the amendment shall clarify that money is property, it is not speech, and that in order to ensure that all citizens, regardless of wealth, have an opportunity to express their views to their follow citizens and to their government on a level playing field, the amount of speech than any one citizen may purchase with their property should be limited to levels that do not overwhelm other citizens." There no doubt are multiple ways to express these values in the wording of an amendment. But one thing is clear; our country must tackle this challenge to restore a government of the people, by the people, and for the people.
- DCressman
January 23, 2012 at 12:48am
sorry that last comment didn't work view full repsonse here http://www.commonblog.com/2012/01/20/the-best-way-to-fix-citizens-united-is-a-constitutional-amendment/
- DCressman
January 23, 2012 at 12:50am