A gathering in Montpelier, Vt., on Jan. 20, 2012, the anniversary of the Citizens United decision. (AP Photo)

If Democrats lose the presidency or the Senate or both, they will surely blame the partisan spending gap. They will intensify their quest for a constitutional amendment allowing Congress to regulate private campaign contributions and expenditures. The amendments proposed so far by activists and congressional Democrats have virtually no chance of passage in the foreseeable future (even if Democrats hold the White House and a slim Senate majority), but they’re worth addressing. They reflect and reinforce treacherously simplistic notions about campaign finance and political speech.

The amendments adopt various approaches to regulation. Perhaps the most popular (and thoughtless) proposal would deprive corporations of legal personhood and all the constitutional rights extended to “people.” This amendment has obvious, visceral appeal to liberals who hear the word “corporation” and immediately think of Exxon or BP, but it ignores many inconvenient truths. They include the facts that nonprofit advocacy groups are corporations too, that the vast majority of for-profit corporations are small businesses, and that the concept of corporate personhood imbues all of these groups with the “people’s” Fourth Amendment rights against unreasonable search and seizure as well as First Amendment rights of speech and association.

Yet this is the “solution” to the campaign finance system proposed by the activist group and introduced in the House by Massachusetts Rep. James McGovern. If you’re a constituent, you might ask him why he wants to deny political speech rights to your favorite advocacy group while enabling warrantless raids of public charities and businesses.

The need to distinguish between business corporations and not-for-profits has not gone unnoticed by all amendment advocates. Democratic senators Bernie Sanders and Mark Begich have introduced an amendment that would deny personhood rights only to for-profit corporations and unincorporated businesses. At first glance, this approach may seem promising; at second glance, not so much.

The Sanders/Begich amendment ignores the ease with which corporations can finance nonprofit groups and create or acquire media arms, an option not available to ordinary citizens. I doubt that this proposal would significantly curb corporate influence. It would, however, deprive all businesses, including unincorporated mom-and-pop operations, of Fourth Amendment rights, greatly increasing the unchecked power of government over millions of Americans.

Of course corporations aren’t people. Even Mitt Romney probably understands that corporate personhood is a metaphor. But it is an essential metaphor. Like the individuals engaged in them, businesses require constitutional protection against abuses of government power, for everyone’s sake.

Some proposed amendments do avoid the dangers of abolishing corporate personhood for either business or nonprofit groups. Various House and Senate Democrats have introduced amendments that would simply enable Congress to regulate campaign spending and contributions – the approach adopted in the 1970s by short-lived post-Watergate legislation. The Federal Election Campaign Act was struck down in part by the Supreme Court in 1976, in Buckley v. Valeo: The Court upheld limits on contributions to candidates but sustained a First Amendment challenge to limits on spending by candidates or independent individuals and groups. As the Court observed, “Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.”

Despite this recognition that limits on spending amounted to limits on speech, Buckley was a politically disastrous decision. By limiting contributions to candidates but allowing unlimited independent spending, it virtually guaranteed the relative decline of parties and the rise of independent expenditure groups: they can raise, as well as spend unlimited amounts, although they remain subject to regulation.

So what’s wrong with a constitutional amendment enabling Congress to limit expenditures as well as contributions? Consider the history of post-Buckley rules governing the independent speech enabled by independent spending. As former ACLU Executive Director Ira Glasser explains, the Federal Election Commission targeted advocacy groups and ordinary citizens for engaging in political speech.

In 1984, for example, the ACLU “was cited and investigated by the FEC for public statements it made criticizing President Reagan for what it considered his violations of civil liberties.” Citizens United, the group that successfully challenged the campaign finance regime, was also a nonprofit, which could have faced criminal charges for distributing a movie highly critical of Hillary Clinton within blackout periods before primary elections. Would reformers applaud the indictment of a progressive activist who distributed a film critical of Mitt Romney shortly before the election? I doubt it.

This policing of political speech was gratuitous: It did not effectively police spending, as Glasser has stressed. Campaign finance laws had “no demonstrable effect on the amount of campaign spending,” he testified in 2000; it increased substantially in the 1980s and ’90s. Spending kept increasing, along with the power of independent groups, under McCain -Feingold, enacted in 2002. Extraordinary concentrations of wealth, predating Citizens United, have enabled individual billionaires to exert or try to exert extraordinary influence over elections.

Today, the campaign finance system comprises a web of independent groups, organized under various provisions of the tax code and federal election laws. The system is incredibly complicated and understood completely by relatively few specialists – like election and tax lawyers. So far, not even the experts know very much about corporate campaign spending and its effects this election year. (Super-PACs have mostly been funded by individuals.) But if political propaganda works, the people persuaded by it are as much to blame as the people who produce it.

Progressives don’t want to blame a gullible electorate for being swayed by inaccurate campaign ads, and they either don’t understand or prefer not to address the complexities of campaign finance. So the Citizens United ruling, invalidating bans on independent union and corporate expenditures, has become a convenient catchall for whatever people don’t like about money and politics.

Constitutional amendments that promise to repeal Citizens United are convenient organizing tools. But they perpetuate myths about the problems of campaign finance and encourage belief in mythic solutions.

The history of campaign finance restrictions is a cautionary tale of unintended consequences. Our deeply flawed electoral system will not get better any time soon, but at least we can strive not to make it any worse.

Tags: Law

The views and opinions expressed in this piece are solely those of the writer and do not in any way reflect the views of WBUR management or its employees.

Please follow our community rules when engaging in comment discussion on this site.
  • David Dapice

    The issue of who is actually spending money; the tax exemption for “social welfare groups” which are not; and the gross inequality of wealth and spending levels are all ignored. What really gets to me is that the Supreme Court would not allow Montana to regulate its own state elections and contributions, based on a popular vote and bitter experience of bought and paid-for politicians. At least, this level of regulation should be allowed. In general, I think the Citizens United will go down as a Plessey vs. Ferguson type of decision that is fundamentally flawed. (That was the decision which allowed separate but equal treatment of the races – only now it is the economic classes.)

  • J__o__h__n

    Stop this SCOTUS crap, write out Supreme Court or even just Court. Enough with silly acronyms.

  • corporations are not people

    Then if corporations are people they should be held to the same legal, social, and ethical standards as individuals. If corporations are people some of them behave like sociopaths and should be dealt with accordingly. If your neighbor acted with selfish, malicious disregard for your property and welfare, consistently lies and cheats to take advantage of you, breaks laws and considers fines, lawsuits, and bribery just a minor cost of doing what they want – how would you deal with such ‘persons’? Who would protect you from them? What if they bought off the ones who are supposed to represent your rights and address your grievances?

  • Sean McElroy

    A natural person is born, lives for a length of time and dies. During this interval, the constitution applies to them. Can we all agree to that at least?

    A corporate person is created (by people) and may never die. The rights, obligations and protections of the constitution were not designed for corporate persons. Corporations exist under the regulation of state governments through Articles of Incorporation. To suggest that the Constitution applies to corporations in the same sense as it would to a natural person is akin to writing up a birth certificate for a fictional person and suggesting that the Constitution applies to it. Consider for a moment who would stand trial for theft given this: a fictional person, a corporate person? Who would be sent to prison upon conviction?

    The fact is that natural personhood and corporate personhood are distinctly different species – using the same word “person” doesn’t change that. There already exist numerous and completely seperate laws governing the behavior or both species and they appear to be robust enough to have allowed the country to prosper up to this point.

    The Supreme Court overstepped when they concluded that the First Amendment to the Constitution, rather than say the Commerce Clause, invalidates the government’s attempt to regulate campaign contributions. This adds a new meaning to the First Amendment that did not exist before. If natural persons are unhappy about this it is probably related to the notion that corporate persons can’t be held responsible in the same manner as they (natural persons) would, given the same law. This is a completely valid concern that the Supreme Court got wrong.

  • jefe68

    I strongly disagree with Wendy Kaminer, she represents all that is wrong with libertarian ideology. If a corporation has the rights that people do then when they break the law they should go to prison or maybe be get the death penalty. The premise of this argument is flawed beyond reason. The history of how money and corporations that are behind this money as a corrupting influence is long as the nations history.

    I think Justice William Brandeis is correct:
    “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few,but we can’t have both.”

  • Harvey A. Silverglate

    Kaminer hits the bulls-eye here and speaks truth to….idiocy. Taking a step back, what’s happening is that liberalism, which I value and to which I’ve long been an adherent, has become diverted by foolish issues that seek to restrict rather than broaden liberty and decency. Seeking restrictions on speech in electoral politics is one of those areas where liberals have gone seriously off-track. In my law practice, I’ve also had to deal with the foolish ideologues who think that legal equality will be achieved by limiting the speech of college students, so that they do not “offend” fellow classmates from historically disadvantaged groups. Unless the left’s war on free speech comes to an end, I think the left will have trouble achieving much of value in its traditional agenda because it will lose the support of liberals who still value liberty.