Sen. Reid on the floor now calling for an amendment to the Constitution to restrict the First Amendment. #seriously.”
Sen. Reid’s proposal for dealing with Americans who disagree with you? Amend the Constitution to restrict their 1st Amendment rights.
Reporters: If Congress can restrict a citizen’s First Amendment rights by amending Constitution, what’s to stop them from restricting yours?
You may have noticed how high-minded and principled Republicans tend to get when the privileges of the small number of Americans who have the money to wield vast influence over campaigns are under any kind of threat. Of course, no one thinks such an amendment would succeed any time soon, because you need a super-majority in both Congress and state legislatures to pass a constitutional amendment, and one of our two great parties happens to think that the system that their allies on the current Supreme Court have fashioned is just peachy.
Despite the long odds, perhaps this is a good opportunity to think creatively about how our system might be altered, to tamp down the possibilities for corruption and bad government and still uphold values like freedom of expression.
First, let’s remember that our current campaign finance system wasn’t handed down from above on stone tablets. It’s the product of a series of laws Congress passed, and Supreme Court decisions altering those laws. Every democracy has slightly different campaign finance laws; in some there are very low contribution limits, but far more common are spending limits for parliamentary candidates, often paired with time limits on campaigning. You don’t have to worry too much about the corrupting influence of money if a candidate is only allowed to campaign for six weeks and spend $20,000. Almost alone, we have the combination of contribution limits and unlimited spending, meaning candidates are always begging for money.
There are two competing values at play here: the desire for uncorrupted political campaigns that don’t distort democracy even if no one’s breaking any laws; and the desire for everyone to have maximal freedom of expression. In most other democracies, they tolerate some limits on political speech to ensure the cleanest campaigns possible; here in America, we tolerate abysmal campaigns in order to ensure the maximum freedom for political speech.
In practice, though, that means maximum freedom for the wealthy; Sheldon Adelson and I both have the right to spend $100 million on the next presidential race, but that right has meaning only for him.
The constitutional amendment Reid is supporting would tilt that balance a little bit back in the other direction, or at least allow Congress to come up with laws to do so. We don’t yet know what those laws might look like. But I’d like to point to one proposal that would make big donors like the Kochs put their money where their mouths are. Donors tend to say they aren’t looking for influence, they’re only donating because of their desire to help the country. Charles Koch tells us that he’s spending all that money to influence control of the Senate in order to restore freedom.
So what if you called these donors’ bluffs by letting people donate as much to candidates as they want, but made it so the candidates wouldn’t know who gave them money? That’s what a pair of Yale professors, Bruce Ackerman and Ian Ayres, proposed in a book they wrote ten years ago, and it’s time it got some more attention (Dylan Matthews of Vox wrote a piece on their proposal last week).
Under their proposal, some billionaire — let’s call him Charles Bloke — could donate a million dollars to Marco Rubio’s next campaign. But Bloke would actually write the check to the Federal Election Commission, which would then give Rubio a check at the end of the month for all the donations he got that month. Rubio would technically never know where his money came from, thereby making it less attractive to try to buy a candidate with large contributions, but just as attractive to merely spend money to support someone you believe in, as Charles Bloke would surely claim he’s trying to do.
This is just one interesting idea, but it shows that it’s far from impossible to imagine different ways our campaign finance system might work. If we set our minds to it, we could refashion the system to make it less distorted without sacrificing our values. It might take a constitutional amendment to do it, and such an outcome is very far off. But it’s never too early to start debating it, and it looks like that’s now going to happen.