Mark Schmitt is the director of the program on political reform at the New America Foundation
On June 3, the Senate Judiciary Committee will hold a hearing on a constitutional amendment to give Congress clearer authority to regulate political spending, responding to Citizens United and other Supreme Court decisions that have invalidated key components of existing regulations.
The amendment is obviously a symbolic gesture, since there’s not the slightest chance it will ever be ratified. But what if it could be? Would it be, as Senate Majority Leader Harry Reid has said, “the salvation of American politics”? Would it allow Congress to enact legislation that would actually limit the role of large donors, and help government function more effectively?
Until recently, it was difficult to even ask that question. There were a dozen or more different proposals and even the organizations pushing for an amendment wouldn’t get specific. But now Reid has embraced just one: S.J. Res. 19, the amendment crafted by Sen. Tom Udall of New Mexico. Avoiding the question of “corporate personhood” that arose in the wake of Citizens United, this version simply affirms that in the interest of political equality, Congress and the states have the authority to regulate “the amount of funds that may be spent by, in support of, or in opposition to … candidates.” It would undo not only Citizens United, but the much bigger deal, the Court’s 1976 decision in Buckley v. Valeo. Because corruption or potential corruption was the only basis for regulation the Court permitted, Buckley allows Congress to limit contributions, but not total spending on a campaign (except under voluntary public financing programs), the amount a self-financed candidate spends, or independent spending by individuals that’s not coordinated with a campaign.
Under the narrow definition of corruption, and the evidence-free logic of the Court, this made some sense. However, it led to an ugly result. Demand for political money was nearly unlimited (to keep up with self-funding candidates or outside spending, and because of the cost of media) but the supply was sharply constrained.
Only a limited number of candidates, mostly incumbents and sometimes ideologues with access to a national mailing list, could assemble enough money to compete from the limited number of people able to give $1,000 or, today’s limit, $2,800. The barriers to entry were too high. During the 1990s, political parties evaded contribution limits with “soft money.” When that was constrained by the Bipartisan Campaign Reform Act of 2002, money – and power – shifted to outside spenders and after Citizens United, to SuperPACs.
Without Buckley v. Valeo – that is, if the post-Watergate limits on both contributions and spending had been allowed to stand — much of the last 40 years of political history might be quite different, and it’s possible that we would have settled into a system of relatively low-cost politics, with a fairly strong role for parties, much like many Western European democracies. But if we were to lift the dead hand of Buckley v. Valeo now, giving Congress and the states the freedom to limit both total spending and external spending intended to influence an election, we would still face three big structural changes in American political life. These changes pose challenges not only for the Constitutional Amendment, but any effort to restore a limits-based regulatory regime.
The Changing Meaning of “Media”. Section 3 of the Udall Amendment says, “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.” That common-sense phrase codifies the media exemption in campaign finance law, which traditionally allowed newspapers to make endorsements. Opponents of campaign finance regulation such as Senator Mitch McConnell have long complained that this exception gave a few corporations – those that owned newspapers or TV or radio stations – the right to spend their resources to influence elections, while other corporations were restrained. Fifteen years ago that argument applied to a fairly well-defined exception, and even liberal or conservative newspapers weren’t closely tied to the parties. Now “the press” encompasses many different forms – including highly partisan and ideological media like Fox, blogs, and talk radio — and a corporation or individual can create something indistinguishable from independent media but intended to influence elections. If political parties are seen as networks of related organizations that go beyond the formal party committees, as many political scientists contend, then media outlets such as the blogs Daily Kos and RedState.org are very much part of those networks. In 2010, the FEC, in a 4-1 vote, granted a media exception to Citizens United itself, an organization that makes scary documentaries about evil liberals. A few years from now, the term “the press” might be as puzzling and outdated as the word “militia” in the 2d Amendment.
The Shifting Boundaries of Elections. The proposed amendment would permit Congress and the states to regulate “the amount of funds that may be spent by, in support of, or in opposition to … candidates” for elective office. That requires finding the line between spending that’s intended to support or oppose candidates, and spending that’s really about issues or ideology. Elections are a special space, governed by their own rules and not free-speech free-for-alls. But in a highly polarized political environment, finding the line that defines the election gets ever more complicated. In 2002, the Bipartisan Campaign Reform Act set a reasonable line, based on extensive empirical analysis by political scientists, of misleading issue ads in that era: ads that named a candidate 60 days before the election, or 30 days before a primary, are considered “electioneering communications.” But we’re now more than 150 days away from the 2014 congressional elections, and the Kochs and their allies are making huge ad buys attacking Obamacare, some of which mention candidates while others don’t. Democratic groups are running ads about the minimum wage. Is there any doubt that the intent of those ads is to influence the election by shaping the issue agenda and mobilizing the partisan base? When issues become fully polarized along party lines, the distinction between issue ads and electoral communication is much harder to find. But there should be no question that both individuals and corporations are free to speak out about issues they care about, using money in the process – if not, we might as well simply repeal the free expression clause of the First Amendment.
Changes in How Money Is Spent. As partisan lines harden, there are fewer and fewer such swing voters. As Sasha Issenberg reported in The New Republic recently, many Democratic political consultants are coming around to the belief, long held by many political scientists, that mobilization – that is, changing who votes – is a better use of political money than persuasion. This is particularly true in mid-term elections, where almost one-third of voters who cast votes in the presidential year stay home. While there is some disagreement about this, and some cases where persuasion still matter, there’s little doubt that the trend is to use money to change the composition of the electorate rather than persuading existing voters.
Why is that relevant to the constitutional amendment? Because efforts to change the composition of the electorate often fall far outside the scope of campaigns themselves, and can be funded by independent organizations, including tax-exempt groups. Churches, community organizations, non-profits and many other intermediaries can encourage low-income voters, evangelical voters, African-Americans, veterans, and other categories from across the political spectrum whose participation levels will influence the election. In a polarized environment, it’s not difficult to figure out who to mobilize in order to change the outcome of elections or policy. There are also efforts at selective demobilization, through voter ID requirements and placement of voting locations. The Udall Amendment, and any subsequent laws restricting spending to influence elections, would not affect most of the tactics or money used to mobilize or demobilize voters.
These three changes often go together, with issues ginned up through partisan media used to mobilize voters. (See, for example, the Fox News attention to Benghazi.) In this political climate, amending the Constitution, and then passing the laws that follow, would do very little to limit the power of big spenders, and might even make the outside spenders, who are not accountable in the ways that parties are, even more powerful. Fortunately, there are better ways to lower the barriers to entry to politics, make differences in money matter less, and empower small donors, and they don’t require changing the Constitution or the Court. Rep. John Sarbanes’ Government By The People Act, which now has 154 cosponsors in Congress, is a good start, and successful, popular programs in New York City, Connecticut and Minnesota offer other models of how to offset big money rather than try to block it. The constitutional amendment is no “salvation,” but a distraction from real changes that would work.