A constitutional amendment to take Big Money out of politics dies quietly

September 12, 2014


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.


 I welcome your comments, reactions, amplifications, relevant links and ideas for future columns. You can reach me at jimgaines.reuters@gmail.com


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


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Right, we don’t have democracy. Never did. The people will have a vote in November, and will send all the same characters back to congress, because they want to be controlled. They fear freedom and prefer servitude. It is one of the great myths that americans want freedom. No, they want to have a master that protects them. Better an only slightly cruel master than to have to live with the responsibility for ones actions and the outcomes that that produces. Hence the common refrain “Why doesn’t the government do something about this”. Nope, it’s a mighty big lie that americans repeat as they claim their freedom. They don’t have it, and don’t really want it.

Posted by brotherkenny4 | Report as abusive

Well “said” Mr. Gaines.

Posted by JL4 | Report as abusive

Maybe we should have a multi-pronged approach to making government representatives more accountable to the people? Campaign finance reform is one prong.

Another is term limits. All elected officials should only serve two terms.

Another is change the Senate from a six year term to a four year term, and the House from a two year term to a four year term.

And finally, I would change the Supreme Court, and any judge elected or appointed, to an eight year term. After that they must be nominated and approved all over again.

Some would say that we need to be able to put good people back in service. I say there are many good people out there. Government should never be a lifetime career for an elected official. The potential for corruption is too great.

Posted by aeci | Report as abusive

Mr. Gaines, you did not explain WHY the Republicans are defending Citizens United. It seems counter intuitive to me, and you seem to agree (you point out how it’s against Conservative principals).

Posted by TanMan1217 | Report as abusive

“The system is corrupt, not the people (Jack Abramoff aside).”

What utter nonsense! Systems cannot be corrupt without the people who guide them being corrupt.

Posted by JRTerrance | Report as abusive

I could not disagree more, brotherkenny4. It may sometimes appear to be as you describe, because it’s easy to fall asleep, but the lopsided polling data alone should tell you that the American people are overwhelmingly aware and critical of the way our political system is failing us and betraying our ideals. I know a lot of our politicians feel that way, and I don’t think you would be as outspoken as you are if you didn’t feel the same. That’s how change begins.

Posted by Jim Gaines | Report as abusive

Hey, JRTerrance, you’re right, up to a point, and then wrong beyond that. The system in place is so big, so massive, so pervasive, that it contributes, significantly, to the corruption that Gaines talks about. Like, daily trading on the NY Stock Exchange reaches well over 150 billion dollars every day of the week. Also, the system creates more and more rich people who get richer every year, and they become a new community of “Americans” who no longer pledge allegiance to the flag but rather to the amount of money they own and hope to get, soon. So yes, people kick start the system but then the monster has ways of taking care of itself. “This is not easy.”

Posted by Rinaldo36 | Report as abusive

brotherkenny4 – You said “we don’t have democracy. Never did.” and everyone should remember that the Founding Father Originally Intended that only “the right people” would have any say in the membership of the Judicial Branch and of the Senate and the choice of President of the United States of America. The “Original Intent” was that “The Right People” would control 2.5 of the 3 branches of the American government.

aeci – You said “Another is term limits. All elected officials should only serve two terms.” and while I applaud your sentiment you must also recognize that the structure of the US government is such that it is almost guaranteed to hinder anyone with any actual experience/knowledge/ability is never going to be in any position of influence in the Federal government. Introducing hard and fast “term limits” is going to take that to new heights and practically guarantee that no one in the US government knows what they are doing. [Admitted it might be difficult to tell the difference from the current crop of office holders.]

TanMan1217 – You said “It seems counter intuitive to me, and you seem to agree (you point out how it’s against Conservative principals).”. The reason is quite simple, the Republicans ARE NOT “Conservatives” any more than the Democrats are “Liberals”. I know that the Republicans say that they are “Conservatives”, but I can guarantee you that if the polling data showed that they would elect a “super majority” in both the House of Representatives and the Senate as well as having a Republican President if they promised the American people out and out raving Communism they would promise the American people out and out raving Communism. Equally, if the polls showed the Democrats that they would elect a “super majority” – as above – if they promised the American people a return to an Absolute Monarchy and the Divine Right of Kings, they would promise the American people a return to an Absolute Monarchy and the Divine Right of Kings.

Posted by TUCurmudgeon | Report as abusive

This is the sole reason that hundreds of thousands of citizens keep their guns loaded, and their doors locked. and not because of their “neighborhood”

Posted by KelevAdom | Report as abusive

The problem with “Citizens United” is that corporations, factions, guilds, fraternities, associations, religions, etc. all consist of members who participate in our system via their personal votes while, at the same time, further influencing the selection of those we can all credibly vote for. That’s not double-dipping – it’s triple-dipping.

Not only that, who’s to say what takes priority in the minds of special interests, America or the various special interests? I think the words of ExxonMobile’s Chairman clearly illustrates that danger.

This is a big deal – big enough that if our candidates at all levels don’t properly and explicitly address it American voters must move-on to someone, anybody else.

Posted by stanastan | Report as abusive

Pay to play politics will end at the first scandal.

Yes, time is money, and money is time.

Why not allow unlimited time?

Posted by Flash1022 | Report as abusive

Reply to TanMan 1217: It may be because Republicans are more attractive to Big Money donors than Democrats are, but a hard line position on protecting the First Amendment is also consistent with libertarian conservatism, and it’s not inconsistent with conservatism generally. What’s odd in this case is that it has become THE Republican position.

Posted by Jim Gaines | Report as abusive

If Exxon/Mobil, or any other global company, is not a US “person” why do they have the rights of US citizenship?

Posted by Gerpal | Report as abusive

Sorry Jim Gaines, that doesn’t fly any more. The democrats have more big money members and shill donors from overseas than Republicans can count. Top that off with union funds the IRS doesn’t count, the money from the wealthy democrat congress people, senators and your have the mess we have today. The real trouble is democrats are scared right now as they should be after messing people around as they have with Obamacare and Dodd-Frank among all the other rules they have forced on us.

Posted by elsewhere | Report as abusive

Apparently they’ve finally found the one thing they can agree on.

Posted by dd606 | Report as abusive

We should limit contributions to ONLY individuals, with the current limit of $10,000.

Most corporations actually give about equal amounts to both parties. They are just hedging their bets, essentially paying “protection” money. But we should still stop that.

Beware of people like Bernie Sanders, because he would manipulate this issue for an agenda. For example, some of the biggest political donors are unions, and he would not want to limit them. Just individuals should donate, no other kind of organization or committee or union or corporation.

Posted by DPM1 | Report as abusive

THe author is being intentionally deceptive. Only individuals can donate to campaigns.

The Citizens United decision was not about campaign spending. It was about the rights of individuals to band together to craft a message. All 9 Supreme Justices agreed that free speech rights applied to groups of people, not just individuals.

The author is right about one thing: the Democrats used to be the party that fought to protect civil liberties. With this case, it is clear they are now leading the charge to end them.

Posted by AngelaTC | Report as abusive

Democrats want money out of politics, except when it comes to spending my unborn grandchildren’s to buy votes from the perennially dependent I assume.

Posted by AngelaTC | Report as abusive

I think you misread me, AngelaTC. I certainly wasn’t intentionally deceptive. I didn’t say that Citizens United was about donations to individual candidates’ campaigns, and I didn’t suggest that the First Amendment doesn’t cover groups of people who want to pool their resources to put out a political message. It does. The problem is that free speech is not the only value worth preserving. The integrity of the political process is important too. I don’t think you would argue that we have that now, and a big part of the reason is the influence of money.

Posted by Jim Gaines | Report as abusive

It’s amazing how much people will forgive complete lack of ethics when the law has been twisted to support it, and it makes a lot of people rich and powerful, therefore, it’s a very confusing topic… When the law supports bad ethics, it is talked about as though it is a hallowed (literally holy) institution that until it is overturned, it is the best thing since sliced bread (when it helped keep people powerful). Oh yeah, everyone would do it if they could, love that one, like everyone is a sociopath just because some people are. I also love how the discussion is talked about like its new, and old, at the same time. Like it’s similar to trying to find out if the chicken came before the egg, well, only in the “business world” is there any confusion regarding person-hood… with how much organic, natural and other terms have been manipulated by those who don’t like real freedom, person, while seeming like a solid concept, has been redefined by people who describe the redefining as something rational… Our country is doomed as long as people are willing to suck the money from the rest because they aren’t strong enough to defend themselves against a social and financial war from the top, which is all that seems to trickle down. How do such ignorant people put themselves into the positions of being the educated… it’s a sick joke.

Posted by epockismet | Report as abusive

With a Congress less loved than an executed king, why we want to solve the problem of the corrupting influence of money in politics by granting the sitting Congress the ability to define laws dictating the contribution of money to politicians? Will this Congress or any other suddenly begin legislating in a way that makes it less likely that they will be re-elected? The solution to the perceived undue influence of corporate money in politics is more speech and more transparency, not less. Leave the Bill of Rights alone.

Posted by prescottb | Report as abusive

The public really doesn’t appreciate the depth and breadth of corruption in government. At the federal level, EVERY appropriations bill is crafted to facilitate embezzlement. Pay to play is a part of every targeted appropriation (they don’t call them earmarks any more). Members of Congress are protected by the speech or debate clause of Article 1 of the Constitution which is why there is almost never a prosecution for embezzling taxpayer funds. Much of this money is laundered using a wide range of methods that includes a hefty amount of tax fraud. This is because when you launder money through a business it’s hard not to create a tax deductible event. The bottom line is that EVERY member of Congress, whether or not they are actively involved in the commission of felonies, has specific knowledge about the illegal activities of their colleagues but remain silent on the issue. A constitutional amendment to limit terms would be a wonderful thing, but it is a practical impossibility. We the people do still get to vote. I urge you to withhold your support from every incumbent. If you can’t stand the opponent then write someone in or leave it blank. If enough of us did that it might just make a difference.

Posted by gordo53 | Report as abusive

Make no mistake about it, the US Congress is owned by Big Business and Wall Street. We Middle Class no longer have representation, time for a new government. American Spring.

Posted by Factoidz | Report as abusive

Oh, and please commenters, get educated, we’ve always had a Republic, not a Democracy.

Posted by Factoidz | Report as abusive

Time for the American Spring.

Posted by Factoidz | Report as abusive

We are now ruled by corporations. They allow us to keep the idea of states and countries simply for our mental scaffolds to stay intact. We pledge our lives to working for corporations. Our sports teams are owned and promoted by corporations. Our “national” decisions are made by corporations. Our sense of “national” pride is brought to you by corporations at half-time. When we vote, we are voting people promoted, owned, and controlled by corporations. Our economy hinges on the profit generation of corporations. When corporations are about to fail, the government – which is run by corporations, bail the failing corporations out of trouble. Get your minds wrapped around it folks. This amendment failed because of corporations. Why would they undermine their own power? My recommendation: buy stocks.

Posted by zeke_voltage | Report as abusive

This is the defining issue of our times, far more pressing than either terrorism or the economy. The article title’s verb and modifier are quite telling: “dies quietly.” The news media, if doing its job responsibly, would be all over this story. But as usual, just a tiny percentage of Americans will be made aware of this little known tragedy. This is how the corporately owned media keeps their useful status quo.

We should all be incensed over the way our nation’s democratic principles have been neutered under the guise of free market capitalism, presented in a way that argues that any attempt to change the current plutocracy is in direct conflict with our Constitution and the very soul of America, which is absolute rubbish. But we’ve fallen for it.

If patriotism retains any meaning at all for Americans, nothing matters but the reestablishing of our representative democracy. We must get the money out of our politics. We must get the money out of our elections. Do not vote for ANY politician who doesn’t present a plan to end corruption in our government.

And after that, we must devise a proper and standardized way of determining state congressional districts, while banning gerrymandering. Enough is enough.

Posted by carnivalchaos | Report as abusive

Factoidz: Unless you’re prepared to argue that democracies don’t exist, the US IS a democracy. A Republic is a type of democracy, a constitutional representative democracy. It’s not a pure democracy. I don’t believe there’s a single “pure” democracy on the planet, but that doesn’t mean democracy doesn’t exist. Don’t get tangled up in syntax. If we define democracy as meaning a state that practices a form of democracy, then we’re a democracy. That’s what people mean when they refer to the US, or Canada, or France, as a democracy. That’s what George W. Bush was suggesting when he argued that he wanted to spread democracy to the Middle East (a failed enterprise.)

Posted by carnivalchaos | Report as abusive

And this thoroughly corrupted political system uses the pretext of democracy to meddle in the Ukraine using the CIA affiliated ‘NGO’ like the National Endowment for Democracy NED to effect ‘Regime Change’. Start cleaning up your own house first.

Posted by JPHR | Report as abusive

Jim Gaines: Thank you for your attention to this critical issue. Please continue beating this drum ceaselessly. If we had more like Bernie Sanders in our government the American people would be far better off. To accomplish that we will need more journalists like you, focusing on facts Americans need to know to successfully navigate their lives.

Posted by carnivalchaos | Report as abusive

The author is in dream-land if he thinks that laws or Constitutional Amendments will solve anything. The only way to stop undue influence by big money players is to strip Congress of its unconstitutional powers. If there’s nothing to buy, no money will flow to buy it. But as long as Congress has vast favors to dole out, corrupting money will flow, as sure as the sun rises.

Posted by YKLWEF | Report as abusive

Thanks Jim.. Good article.. tangled situation…

The USA has a constitutional birth defect. Freedom of speech was about individuals being able to say what they think without getting thrown in jail. Court rulings have twisted it so far out of context that money is now speech and corporations are people.

However, there is no going back. Like a person that has learned to run with one leg shorter than the other,, there are tendons, muscles and etc that now work a certain way. Surgery would end up crippling the patient/corporate power structure. Corporations and conservatives will never let the problem be fixed.

End result – shortened patient life.

Posted by michaelryan | Report as abusive

Please forgive me if my understanding of the law is entirely inaccurate. However, I was under the impression that the rule the supreme court handed down about campaign finance reform was that corporations, for profit or otherwise, cannot donate money to the campaigns of candidates for public office, but they can spend as much money as they want on their own political speech. This article makes it sound like corporations can make campaign contributions, which I understood to categorically not be the case until now. About the fairness doctrine, didn’t the FEC voluntarily remove the fairness doctrine because they believed it was no longer necessary?

Posted by Sewblon | Report as abusive

You’re right about Citizens United. Sorry if I was unclear. I’m no expert on the Fairness Doctrine, but from the account in Wikipedia the FCC’s reversal was pretty contentious.

Posted by Jim Gaines | Report as abusive

I don’t see this situation changing until there is a really serious altering of the financial landscape. It would only take one really filthy rich magnate to upon his death have his will establish a foundation or PAC with an endowment of 50 billion dollars and instructions that the money go towards Democratic, Independent or Occupy candidates.

If one party was instantly faced with the prospect that an opposing party had an outsized advantage you would see immediate legislation to change the system.

So, Bill Gates, Warren Buffet, Sheldon Adelson, Mark Zuckerberg, et al, if you really want to leave a living legacy, create the circumstances that will forever alter the money-go-round that has politicians constantly at the trough serving themselves instead of their constituents.

Posted by cabeachguy | Report as abusive

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