To save what little semblance of democracy we still have left, we absolutely need to overturn Citizens United and McCutcheon v. FEC. According to Public Citizen News, 83 percent of Americans favor limiting the amount of money that corporations and other organizations can spend on elections. By its calculations, about $7 billion was spent on the 2012 federal elections--most of it due to Citizens United, which permits corporations and the wealthy to spend unlimited amounts of money on ads and other campaign activities. The elimination of the old $123,000 limit in McCutcheon enabled the 600 individuals who exceeded that amount to funnel up to $5.9 million into the political process. What can we do about, while we still have the machinery---even if not much of the substance of---the democratic process?
One of the most effective strategies is for progressives everywhere to throw their support behind S.J. Res.19, which has been in the works for four years. It was introduced by U.S. Senator Tom Udall (D-N.M.) and it would overturn not only Citizens United and McCutcheon, but also Buckley v. Valeo, a 1976 Supreme Court decision that established the doctrine popularly called "money equals people." On June 3, the Senate Judiciary Committee held a hearing on the proposed amendment, which would give Congress and the states the authority to regulate and limit campaign spending, including expenditures by, in support of, or to oppose candidates in federal elections. Before the hearing even began, a number of progressive organizations delivered a petition in support of the amendment signed by more than two million people from throughout the country. It pledged the support of sixty progressive organizations including Public Citizen, USAction, Common Cause, the Sierra Club, Greenpeace, the NAACP, and the Communication Workers of America. Speaking for them, Public Citizen President Robert Weissman proclaimed that "this is an historic moment.This amendment will help restore the most basic meaning of democracy--rule by the people."
In a prepared statement, Senator Harry Reid (D-Nev), the Senate Majority Leader, testified that "American families cannot compete with billionaires, Our involvement in government should not be dependent on our bank account balances." On June 18, the Constitution, Civil Rights and Human Rights Subcommittee of the Judiciary Committee approved a revised version that simplified and shortened the amendment's language. This version contains slightly more than 100 words stipulating that "to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections." In addition, it empowers Congress and the states to "distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections." On July 10, the full committee voted to send the revised version to the Senate floor, where it is scheduled for a vote this fall. So far, 47 Senators have signed on in support.
In urging support for the amendment, Weissman proclaims that "the American people know that the current system is failing them. They desperately want action. They believe passionately in ensuring that their speech--not that of any one select group, but the speech of We the People--matters. They are clamoring for the 28th Amendment."
In his brilliant treatise Six Amendments: How and Why We Should Change The Constitution, retired Supreme Court Justice John Paul Stevens makes a compelling case for a "Campaign Finance" amendment. (the others are the "Anti-Commandeering Rule, Sovereign Immunity, Political Gerrymandering, the Death Penalty, and Gun Control.) In this succinct 177 page treatise, Justice Stevens argues that the first four "would nullify judge-made rules, the fifth would expedite the demise of the death penalty, and the sixth would confine the coverage of the Second Amendment to the area intended by its authors." Over time, he contends that the "soundness of each of my proposals will become more and more evident, and that ultimately each will be adopted." The purpose of this book, he states flatly is "to expedite that process and to avoid future crises before they occur." In support of the amendment regarding campaign finance, Justice Stevens quotes from President Theodore Roosevelt 1905 annual message to Congress:
All contributions by corporations to any political committee for any
political purpose should be forbidden by law; directors should not be
permitted to use stockholders' money for such purposes; and, moreover,
a prohibition of this kind would be, as far as it went, an effective method
of stopping the evils aimed at in corrupt practices acts.
Two years later, Justice Stevens argues, " Congress passed a statute banning all corporate contributions to political candidates. For decades thereafter, Congress, most state legislators, and members of the Supreme Court apparently agreed that it was both wise and constitutional to impose greater restrictions on corporate participation in elections than on individuals." That consensus maintained until 1990, when Justices Anton Scalia and Anthony Kennedy wrote a dissenting opinion in Austin v. Michigan Chamber of Commerce. The majority upheld the constitutionality of a Michigan statute prohibiting corporations from making any expenditure in connection with an election campaign for state office. The dissenting opinion written by Scalia, who argued that "corporate speech, like other expressive activities by groups of persons, was entitled to the same First Amendment protection as speech by an individual." Fast forward to 2011 and Citizens United v. FEC, in which the Scalia-Kennedy interpretation became the majority opinion (5-4), and "the rest is history," at least until the present.
Stevens does not "fast forward," but traces the devolution of campaign finance regulation from Austin to Citizens United, step-by-step. He also points out that campaign contributions by labor unions have been seriously restricted since the Court upheld that limitation as part of the infamous Taft-Hartley Act of 1947. Stevens also pointedly argues that most members of the TV viewing public "share my opinion that at least 75 percent--perhaps even 90 percent--of the campaign commercials could be omitted without depriving viewers of any useful data." He goes on to say that the decision in Citizens United took a giant step in the wrong direction by "giving corporations an unlimited right to spend their shareholders money in election campaigns." < Isn't it odd that corporations that always insist that their primary (only?) responsibility is to their shareholders, as opposed to labor, consumers or the general public, feel empowered to spend their shareholders money on political action without having to get their permission?> A constitutional amendment allowing Congress and the states to place "reasonable" limits on campaign expenditures "would allow corporations to make public announcements of their views but would prohibit them from engaging in "the kind of repetitive and excessive advocacy that the candidates typically employ."
In conclusion, Justice Stevens even provides the exact language that such an amendment should take: Neither the First Amendment nor any other provision of this constitution shall be construed to prohibit Congress or any state from opposing reasonable limits on the amount of money that candidates for public office, or their supporters may spend in election campaigns. Of course. there will be intense disagreements over the definition of "reasonable." That is what is normally called POLITICS!!!
JDB
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