Citizens United Against the Supreme Court
March 24, 2010
The recent Citizens United ruling by the US Supreme Court, which holds that First Amendment protections apply not just to individual speakers but also to corporations, is only the latest in a decades-long series of decisions by the Court that have expanded the scope of the First Amendment into realms never imagined by our Founding Fathers.
Beginning with Buckley v. Valeo in 1976, the Justices have embraced the concept that money is equal to speech, and that therefore any limitation on campaign spending violates the First Amendment. This week’s ruling simply expands this protection to cover corporations, which are by definition aggregators of money. So now corporate money will completely overwhelm individual money in the arena of political speech, and Madison’s conception of our government as a forum for the broadest possible public deliberation of issues will be rendered legally moot.
Whatever the Justices’ reasoning in these cases, It seems highly unlikely that when the Founders wrote “Congress shall make no law … abridging the freedom of the speech … ”, what they really meant was “Congressional representation shall be sold to the highest bidder” – which is the de facto effect of this series of decisions.
What are the People to do?
It should now be clear to proponents of campaign finance reform that we can no longer look to traditional legislation as a tool for limiting the influence of private donations on our electoral process. If this issue is going to be successfully addressed, it will have to be at a higher level — at the level of the US Constitution.
For example, consider a constitutional amendment that would limit the total amount of money that can be spent in a given Federal general election. What might be the impact of limiting total expenditures in a presidential general election to, say, $350 million per candidate? Arguably if a candidate needs more than that to make his or her case to the American electorate, maybe what we’re getting isn’t a better understanding of the candidate, but more spin and fancier packaging. And if no one candidate can spend more than $350 million, a level playing field is achieved regardless of the source of funds.
This amendment, as proposed at www.amendment-28.com, includes: provisions for setting spending limits for each Federal general election, and for partial public funding of such elections; a formula for distributing public campaign funds to qualifying candidates; and strict limits on the amount of private contributions that candidates can raise to augment their share of publicly allocated funds.
Limiting the total amount of money that can be spent in a campaign puts an end to the spiraling cost of campaigns, the need for sitting Congressmen to constantly raise money, and the outsized influence of major campaign contributors.
There may well be other, perhaps better, schemes for altering the basic dynamics of election campaign financing. Stanford Law Professor Lawrence Lessig recently launched a Web site www.callaconvention.org, with a draft amendment that takes a more abstract approach to the issue, offering up a kind of “prime directive” that limits by broad stroke the ways that campaigns can raise money. Other amendment proposals put forth in the future may also merit serious consideration. No solution, however, will succeed if it cannot be clearly expressed as a constitutional amendment, and explained to the voting public in simple and compelling terms.
The Supreme Court is not the final authority on matters of US constitutional law: the People are.
Neal Rechtman is author of The 28th Amendment and an advocate of “open source” democracy. Mr. Rechtman is also the founder of lawmatch.com, a legal employment service.
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