Senate Considering Constitutional Amendment to Curb Influence of Money in Politics
by Lukas Autenried, 6/18/2014
Democracy is premised on affording citizens equal say in determining the nature and direction of our government. The impacts of the U.S. Supreme Court’s rulings in the Citizens United and McCutcheon cases threaten to undermine this fundamental principle by maximizing the political power of those with the most economic power. In response, Congress is considering a constitutional amendment aimed at restoring the ability of states and the federal government to develop effective campaign finance policies.
The Problem with Money in Politics
Big money in politics has a profoundly negative impact on the democratic political system. In addition to the potential for individual corruption, such as bribery, money in politics can result in structural or systemic corruption. Campaign donations buy access and attention which, even if they do not amount to outright influence, warp the information that public officials receive. Elected officials can then develop a distorted sense of priorities, based on the interests of wealthy individuals and corporations rather than American voters. Despite widespread public concern about climate change, for instance, Congress has failed to enact legislation to reduce greenhouse gas emissions to safer levels – perhaps influenced by concerns expressed by polluters that donate large sums to candidates.
The power of money to influence politics also creates the potential for the voices of wealthy special interests to drown out those of everyday citizens. The average voter cannot compete with the capacity of large corporations or wealthy individuals to spend virtually limitless amounts of money on elections and the nation's political agenda. As Justice Stephen Breyer explained in his dissenting opinion in McCutcheon v. FEC, "Where enough money calls the tune, the general public will not be heard." When campaign contributions are not reasonably limited, collective speech ceases to matter and the average citizen, as Sen. Dick Durbin (D-IL) pointed out, "loses their appetite for the contest."
Moreover, the ability of representatives to support the public good is hindered if they must allocate too much of their time securing the necessary funding for their reelection campaigns. For example, freshmen members of Congress are advised by their party leadership to spend four hours each day making fundraising calls and one hour on "strategic outreach," including fundraising events. This perpetual “fund race” means that many lawmakers devote half their time to fundraising, rather than governing.
The Supreme Court Chips Away at Campaign Finance Rules
In order to protect against the harmful effects of money in politics, states and the federal government have regulated campaign finance for decades. However, over the past 40 years – and particularly since 2010 – the U.S. Supreme Court has undone many of those protections, primarily by following a line of reasoning that equates money with speech.
The Court’s 1976 decision in Buckley v. Valeo opened the doors to that way of thinking. The ruling struck down restrictions on campaign spending, finding that such regulation unduly limited free speech. The ruling upheld limits on campaign contributions to prevent "corruption or its appearance" but paved the way for future weakening of campaign finance laws by granting free speech protections to campaign expenditures.
The Court followed this line of reasoning to an extreme in its 2010 ruling in Citizens United v. FEC. The Court’s decision overturned limits on independent political expenditures by corporations and unions on the grounds that such expenditures are political speech protected by the First Amendment. While the ruling encouraged disclosure requirements, Congress has yet to institute new provisions to require transparency for such expenditures.
The Court further rolled back limitations on campaign spending in its 2014 ruling in McCutcheon v. FEC. Again citing undue restrictions on free speech, that decision overturned the aggregate limit of contributions an individual could make to federal elections. This ruling marks the latest step in a transition away from concerns about corruption and toward the protection of campaign contributions as free speech. Additionally, by narrowing the definition of corruption to what's known as quid pro quo corruption, the Citizens United and McCutcheon decisions have severely narrowed the allowable grounds for future campaign finance reforms, leaving a constitutional amendment as one of the few remaining recourses for those seeking to curb the influence of money in political campaigns.
A Flood of Money
In the wake of the Citizens United ruling, spending by outside groups rose 243 percent in 2012 over the previous presidential cycle, in what was the most expensive election to date. Equally alarming is that the bulk of the contributions are coming from a very small segment of the population. For example, 0.4 percent of the population was responsible for 63 percent of contributions to candidate campaigns, political parties, and PACs, according to the Center for Responsive Politics. Meanwhile, 60 percent of all SuperPAC donations came from 159 donors. The growth of large donors raises serious concerns regarding the democratic nature of U.S. elections.
The Citizens United ruling also helped launch the SuperPACs referenced above, which can accept unlimited contributions for the purpose of individual campaign expenditures. Though SuperPACs are not allowed to coordinate directly with candidates or political parties, in some cases “the ‘independent’ status can be a thinly disguised legal fiction,” according a report by the University of Denver’s Strategic Issues Program. “When [a SuperPAC] is directed by a candidate’s former campaign manager and its employees include former candidate staffers, formal coordination between the independent group and the candidate is hardly necessary.” The result is a flood of "dark money" that is both unregulated and undisclosed.
The impact of these rulings is not limited to federal elections. In fact, the smaller scale of state and local campaigns means that wealthy donors can wield even greater influence. Floyd McKissick Jr., a state representative from North Carolina, testified before the U.S. Senate Judiciary Committee about how dire the situation has become in his state. From 2006 to 2010, the amount of independent spending on elections in North Carolina has quadrupled.
Seventy-two percent of the outside money spent on state races in North Carolina was tied to one man, Art Pope. According to Rep. McKissick, the influence Pope's contributions had in determining the gubernatorial race secured him the position of the state's chief budget writer. Pope was also able to influence 18 critical races that shifted the political dynamic within the state, leading to laws that made it easier for big donors to get involved in politics, as well the nation's most restrictive voting requirements, which have already unduly impacted elderly, student, and minority voters, according to McKissick.
The Proposed Amendment
To address the growing concerns over money in politics, Sen. Tom Udall (D-NM) introduced S.J. Res. 19, a proposed amendment directed at contributions and expenditures intended to affect elections. The amendment would grant Congress the express authority to regulate and limit the raising and spending of money on federal elections while giving states similar regulatory jurisdiction over state and local campaigns. The amendment would also enable states and Congress to regulate and limit independent expenditures, including those of SuperPACs and wealthy individuals. Rather than dictating any specific policies or regulations, the amendment empowers Congress and the states to pass campaign finance reform legislation.
Support for such an amendment is widespread. So far, more than two million people have signed petitions supporting the amendment. Additionally, 160 members of Congress, 16 states, and more than 550 municipalities have called for an amendment to reform campaign finance laws. The amendment has also received endorsements from more than 120 national organizations, including the Center for Effective Government.
The proposed amendment is but one aspect of a broader effort at reform. There are numerous other statutory, regulatory, and administrative initiatives to increase transparency and create public financing options that would help level the electoral playing field.
Public Consensus on Need for Reform
The general consensus from voters across the political spectrum is that change is needed. According to a Washington Post poll, eight in ten respondents oppose the Supreme Court's decision in Citizens United. Democratic and Republican voters alike believe that the lack of limits on campaign contributions promotes corruption and gives large companies too much power, essentially creating a system of pay-to-play. The perception that moneyed interests wield disproportionate influence as a result of the Citizens United ruling is also discouraging average voters from participating – one in four Americans say that they are less likely to vote because of the decision.
Voters agree that restoring some semblance of political equality starts with limiting the amount of money spent on elections. Four in five Americans support legislation that would limit the amount candidates can spend on their election campaigns, while 76 percent believe that limits should be placed on outside groups like SuperPACs. Additionally, 83 percent of Americans think that corporations' electoral spending should be limited.
The Path Forward
Amending the U.S. Constitution is difficult. Congress can propose an amendment by a vote of two-thirds of both the House and the Senate. The amendment must then be ratified by three-fourths (38) of the state legislatures.
Though the difficulty of amending the Constitution reflects the gravity of such action, it is not without precedent, specifically when it comes to making the democratic process more inclusive. Such was the impetus behind the ratification of the 15th, 19th, 23rd, and 26th Amendments, all of which expanded the right to vote. Supporters of the amendment currently under consideration before the Senate Judiciary Committee see it as the latest iteration of this expansion of political equality.
The Senate Judiciary Subcommittee markup of the campaign finance amendment was scheduled to occur on June 18, and Senate Majority Leader Harry Reid (D-NV) has promised a floor vote on the amendment later this year. You can contact your senators to share your views on the amendment. Regardless of the outcome of the vote, the debate over the amendment is an opportunity to focus attention and promote open discourse on a critical issue and to build support for reform.