A constitutional amendment to take Big Money out of politics dies quietly
This week the U.S. Senate considered a constitutional amendment that would have allowed Congress and state legislatures to limit the power of money in politics. The debate was not much covered in the media because the outcome was so predictable. But the party-line vote that killed it should not go unnoted.
A remarkable majority of the American public — 79 percent according to Gallup — want campaign finance reform. The right and left, the Tea Party and Occupy Wall Street, even Jon Stewart and Bill O’Reilly agree that, left unchecked, Big Money corrupts politics and undermines democracy.
That was one of the few things Thomas Jefferson and Alexander Hamilton agreed on, and both the American and French Revolutions were fought in part to get the financial power and privilege of aristocracy out of governance.
But even George III after Yorktown and Louis XVI on the eve of execution were more popular than Congress is today, and the strangely perverse partisanship that characterized the debate on the amendment this week helps to explain why.
In fairness, the U.S. Supreme Court started it. In two 5-4 rulings — Citizens United vs the Federal Election Commission in 2010 and McCutcheon vs. FEC last spring — the five conservative justices, like the Republicans in Congress this week, invoked the American Civil Liberties Union’s traditional hard line on free speech to justify lifting restrictions on political spending.
The liberals on the court, just like the Democrats in Congress, embraced a position closer to what was once the hard-right view. Ronald Reagan’s political godfather, Arizona Senator Barry Goldwater, stated the position clearly in his breakthrough credo of 1960, The Conscience of a Conservative: “In order to achieve the widest possible distribution of political power, financial contributions to political campaigns should be made by individuals alone. I see no reason for labor unions — or corporations — to participate in politics. Both were created for economic purposes and their activities should be restricted accordingly.”
When you find Democrats close to Goldwater’s position and Republicans on the side of the ACLU, you have to wonder if something other than principle is driving the argument.
Is it that Republicans benefit from Big Money more than Democrats do? Maybe, or maybe that’s just a coincidence. No matter. Democrats are as willing to take the money as Republicans are, and Republicans know as well as Democrats do what money does to politics. In his book Republic, Lost, Lawrence Lessig quotes several prominent Republicans to that effect — out-of-office Republicans, of course, including former Representative Joe Scarborough. “Across the spectrum, money changed votes,” the host of Morning Joe said of his years in Congress, “… and I’m sure it has in every other administration, too.”
To be clear, we’re not talking about bribery or quid pro quo corruption, just the kind of thing that happens between friends who do favors for each other because — well, maybe not exactly because, maybe it’s just another coincidence — one of them has money and needs some regulation changed and the other has political power and needs that money, a lot.
This is an indictment of no one, in either party. The system is corrupt, not the people (Jack Abramoff aside). The people are doing what the system allows and now more than ever demands.
This is a hard problem, because two first-priority principles are in conflict, free speech and civic integrity. But there are weak points in the front lines of this contest that might suggest areas of compromise.
The core principles that the court affirmed in Citizens United and McCutcheon are that corporations are people, with the same right to influence politics as voters, and that you can’t place arbitrary limits on political donations because money is speech.
Well, yes, money talks. But we regulate speech all the time —in debate on the floor of Congress, for example, and when lawyers argue before the Supreme Court. As former Justice John Paul Stevens argues in his recent book Six Amendments, we do that especially when “there is an interest in giving adversaries an equal opportunity to persuade a decision maker to reach one conclusion rather than another.” Like a voter trying to decide between two candidates. Remember the equal-time rule and the Fairness Doctrine? We’ve worked on these problems before.
Corporations are “legal persons,” to be sure, but they are “people” who do not die and cannot vote, who have liability protection as well as civil rights, who can live in many countries simultaneously and whose duty is — and must be — not to democracy or the common welfare but to maximizing profits and shareholder return.
Especially given U.S. corporations’ global spread, the days are gone when the CEO of any multinational could say, “What’s good for [your company name here] is good for America.” When asked if he would consider building more refineries in the United States to forestall future gas shortages, then ExxonMobil chairman Lee Raymond replied, “Why would I do that? I’m not a U.S. company, and I don’t make decisions based on what’s good for the U.S.” Raymond was not being anti-American, just honest.
We prevent citizens of other countries and foreign corporations from donating to our politicians and political causes, why not multinationals?
All corporations neatly fit James Madison’s definition of “factions,” by which he explained the need for checks and balances and the separation of powers in three branches of government. “By a faction,” he wrote, “I understand a number of citizens…who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
On the other hand, Catholic Charities and the Sierra Club are corporations and factions, too. Again, this is not easy.
No one ever imagined that the constitutional amendment defeated in the Senate this week would get enough votes to get through Congress, and there were problems with its language that make its loss difficult to mourn.
But the people will have a vote in November that could affect the fate of reform in the next Congress, and if they weren’t attentively watching the roll call vote on Thursday afternoon, the mid-term candidates’ campaign staffs surely were. We will start seeing the commercials next week.
It is difficult to overstate how much is at stake, and Goldwater didn’t when he put it this way: “Our nation is facing a crisis of liberty if we do not control campaign expenditures. We must prove that elective office is not for sale. We must convince the public that elected officials are what James Madison intended us to be, agents of the sovereign people, not the hired hands of rich givers….”
The Senate’s lone socialist, Vermont’s Bernie Sanders, couldn’t have said it better himself.
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PHOTO: U.S. Senator Bernie Sanders (D-VT) (R) addresses a news conference in support of a proposed constitutional amendment for campaign finance reform, on Capitol Hill in Washington September 8, 2014. REUTERS/Jonathan Ernst