By James Ferencsik.
Last week, Al Franken took over my Facebook news feed. Each time I opened the social network, I was inundated with advertisements encouraging me to sign the Senator’s petition supporting a constitutional amendment to overrule the Supreme Court’s Citizens United decision, which significantly weakened campaign finance laws. The ratification of any amendment to the U.S. Constitution is nothing short of a Herculean task, and Franken’s effort has been characterized as half-hearted and purely political. Launched in the midst of his reelection bid, the petition has been channeled mainly through social media and helped rally Progressive grassroots support to his campaign. Regardless of the political undertones, Franken’s petition is very necessary. America’s current campaign finance system seriously undermines the democratic process, and the American public desperately needs to discuss and address that fact.
Just under $6.3 billion, more than the nominal GDP of roughly a quarter of the world’s countries, was spent on the 2012 federal elections. The elections also marked the first time that non-party spending topped $1 billion, a quarter of which came from “dark money” groups that do not disclose their donors. This significant influx of campaign cash has substantially affected elections and elected officials’ priorities. In 2012, the House candidate with more money won a whopping 95% of the time. After the 2012 Congressional elections, first-term Democrats were told by their Party leadership to spend four hours a day calling potential donors – double the time the leadership expected the new members to devote to hearings, votes, and meeting with constituents. Freshmen Representatives, however, are not unique; almost all Congressmen spend the majority of their time fundraising, and Presidents have been forced to fundraise more. Ronald Reagan held three fundraisers in the two years before his reelection bid; Obama held 164 before his.
The effects of this system are clear; politicians spend more time fundraising and talking to wealthy donors and less time doing their jobs and talking to average constituents. Consequently, elected officials have become more acquainted with the concerns of wealthy donors than average constituents. Furthermore, in this age of free-flowing campaign cash, politicians will most likely credit their victories to their donors, leading them to conclude they are accountable to donors and not average voters. This distorts legislative priorities and undermines efforts to help middle and working class families.
It is also very clear the Supreme Court is responsible for this system. Since 1976 when the Court ruled in Buckley v. Valeo that limits on campaign expenditures were unconstitutional limits on political “speech,” the Court has consistently undermined numerous campaign finance laws and regulations. In 1996, the Court under Chief Justice Rehnquist ruled that a restriction on how much a political party could spend in connection with a particular candidate was unconstitutional. In 2010, the Supreme Court issued its instantly infamous ruling in Citizens United. The decision struck down regulations that prevented corporations and labor unions from spending money on election communications that directly mentioned a candidate’s name 60 days before a general election. In total, the Court has effectively and consistently chipped away at Congress’ power to regulate campaign finance.
Citizens United was immediately met with vehement opposition, and sixteen states quickly passed measures urging Congress to send them an amendment to overturn the decision. Despite support for the measure, Congress did not take it up and instead considered the DISCLOSE Act. The common sense proposal would have prevented corporations with over 20% foreign ownership and corporations that received TARP (Bailout) funds from making political contributions; however, it fell one vote short of breaking a Republican-led filibuster in the Senate. Recently, Democrats tried to revive the DISCLOSE Act, but Republicans balked once again. Franken has claimed this as justification for reigniting the debate over a constitutional amendment.
There are undoubtedly merits to a constitutional amendment overturning Citizens United. If passed, it would substantively improve the quality of democracy in America. Politicians would become more responsive to average voters and spend more time actually governing instead of fundraising and political posturing in order to fundraise. It is also important that any proposal be modest and simply grant Congress the authority to regulate contributions to and expenditures made by federal campaigns and all forms of political action committees. If the amendment became much more specific and tried to explicitly place limits on campaigns, then proponents would face even stiffer opposition. Political limits on campaign finance should remain – just not judicial ones. Although this approach would help any amendment’s chances, the probability that something gets out of Congress and sent to the states in the near future is very slim. However, that does not mean reformers do not have options.
The most effective way to channel their energies is to form a legal movement that espouses the view that campaign spending is not protected by the First Amendment. This movement would focus on electing Senators and Presidents who support this view. Presidents would commit to nominating judges who share their philosophy on campaign finance, and Senators would commit to filibustering judicial nominees that will not reverse campaign finance precedent. Over the long-run, the movement would be able to turn the courts against the notions that money is speech and corporations are people. Unwittingly or not, Al Franken is laying the groundwork for this movement. It is up to him and other reformers to attract attention to campaign finance in America today and to take the first steps to fix it.