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 freespeechforpeople.org 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.