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Returning Equality to the Campaign Finance Debate

Although the Chief Justice rejects it, both a former colleague and 40 senators believe equality has a role in political speech.

May 16, 2014

April showers bring May flowers? April brought us a throwdown between two Supreme Court Justices over campaign finance laws. But May brought us what seems to be a commitment to a Senate vote this summer on a constitutional amendment to address the tidal wave of money threatening to swamp our political process.

April dawned with Chief Justice Roberts decision in McCutcheon v. FEC, which yanked the rug out from under another plank of our current campaign finance system. And it ended with retired Justice John Paul Stevens publicly taking on Roberts for a jurisprudence that is “quite wrong” in his testimony before the Senate and in a variety of public appearances promoting his new book.

Largely lost in the April media shuffle around Stevens’ appearance: Senator Charles Schumer’s announcement that the Senate would vote this year on a campaign finance constitutional amendment.

After two weeks of silence on the matter, Senate Majority leader Harry Reid Friday announced he supported a draft amendment and set the Senate wheels in motion for a vote this summer.

In the years since Citizens United, campaign finance reform efforts have either been small ball (e.g. more disclosure) or shoot for the moon. Well, Reid and Schumer are shooting for the moon. And their space module is Senator Tom Udall’s proposed amendment, S.J.Res. 19.

Udall’s amendment lacks the soaring language or majesty we hope for from constitutional amendments. (Though, seriously, read the 12th  and 25th amendment if you want to disabuse yourself of the notion that the Constitution should have inspiring language).

Udall’s proposal posits two justifications for granting Congress power to regulate money in politics: “political equality for all” and “integrity of the legislative and electoral processes.” It then gives Congress the power to: limit contributions (money or in-kind) to candidates and limit the amounts that may be spent supporting or opposing those candidates. The Amendment also extends to state elections, granting states the same powers as Congress.

Perhaps the most interesting thing about Udall’s proposal is its direct injection of equality as a constitutional goal and valid justification for campaign finance regulation. We need that because the Supreme Court has “made clear … Congress may not regulate contributions… simply to restrict the political participation of some in order to enhance the relative influence of others.” In short, equality concerns have no bearing in the Court’s jurisprudence on the matter. Corruption and the appearance of corruption are the two cognizable justifications for regulating money in politics.

Yet to speak to the average American concerned about money in politics, the equality issue is often what concerns them most. If money is speech, then rich people have more speech and more say in our political system. The concentration of money in politics—the unremitting quest for it by politicians, the unrepresentative nature of who gives the money—are corrupting, distorting to our system. And that is anathema to our conception of how a democracy works, where votes and voters are supposed to determine policy on a one man-one vote basis.

Justice Stevens certainly made that case when he testified (and in his book, and in his dissents in Citizens United). “Elections are contests between rival candidates for public office. Like rules that govern athletic contests or adversary litigation, those rules should create a level playing field…. Unlimited campaign expenditures impair the process of democratic self-government. They create a risk that successful candidates will pay more attention to the interests of non-voters who provided them with money than to the interests of the voters who elected them.”

But nothing could have driven his point home more clearly than something else that happened last month: two academics released a study. Princeton’s Martin Gilens and Northwestern’s Benjamin Page’s study was touted in many reports as proof that America is an oligarchy….not at all the phrase or way they would use in describing their work.

Their conclusion: “When the preferences of economic elites and the stands of organized interest groups are controlled for, the preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.”

Their fascinating analysis took a look at the impact of median public opinion, economic elite opinion, and interest group pressure on 1,779 policy matters over a 20-year period. After sifting through the impact of the three variables on the outcomes in those 1,779 matters, they propose that we have a “democracy by coincidence, in which ordinary citizens get what they want from government only when they happen to agree with elites or interest groups that are really calling the shots.”

Gilens and Page did not analyze the way economic elites and interest groups effectuate their hold on American policymaking, but it would probably be a cold day in hell before campaign contributions and expenditures didn’t play a role.

As Senator Udall gears up for a Senate floor debate on his constitutional amendment, which will take two-thirds of the chamber to pass, he has to face facts. He only has 40 co-sponsors. Most leaders in the Republican Party are opposed to his amendment. He faces an uphill climb.

In the meantime, April brought more evidence of the relentless surge of money into our democracy: Napster bad-boy billionaire Sean Parker was reported to be launching a plan to “conquer politics;” billionaire ex-Mayor Michael Bloomberg announced a $50 million spend on gun control issues; Karl Rove’s American Crossroads PAC filed a report on a banner fundraising month, which included a $2 million donation from former Univision Chairman Jerry Perenchio…and the beat goes on.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

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(Photo: AP)