Plan B on Citizens United?
By Ruth Marcus,
Pushing constitutional amendments tends to be the province of Republican presidents: to mandate balanced budgets, for instance, or to make abortion illegal.
But President Obama has been both speaking privately and flirting openly with the notion of amending the Constitution. His goal would be to overturn the Supreme Court’s Citizens United decision and get the biggest-money checks out of politics.
Obama advisers have been edging up to this for months. In February, urging donors to open their checkbooks to Obama-supporting super PACs, campaign manager Jim Messina said that “the president favors action — by constitutional amendment, if necessary — to place reasonable limits on all such spending.”
Senior adviser David Axelrod took it a step further in June. “What the Supreme Court did with the Citizens United ruling, opening the door to this unlimited spending . . . is taking us back to the Gilded Age. We’re back to the robber barons trying to take over the government,” Axelrod said. “I hope that one of the things we can do when we win this election is use whatever tools are available, up to and including a constitutional amendment, to turn this back.”
Then came Obama himself. In the midst of the Republican convention, in a question-and-answer session with the Web site Reddit that received more notice for his promise to unveil the White House recipe for honey ale, the president was asked what he thought should be done about the avalanche of unlimited donations.
“Money has always been a factor in politics, but we are seeing something new in the no-holds-barred flow of seven- and eight-figure checks, most undisclosed, into super PACs; they fundamentally threaten to overwhelm the political process over the long run and drown out the voices of ordinary citizens,” he wrote.
Obama mentioned a few limited remedies. He pushed for the Disclose Act, which would address the disturbing problem of “dark money,” contributions that remain secret because of gaps in federal tax law covering nonprofit groups. This would be a crucial step toward transparency but would do nothing to address the larger concern of mega-donations: We would at least know where the cash came from, but it could still be written in seven- and eight-figure amounts.
Next the president moved to the constitutional option. “Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn’t revisit it),” he wrote. “Even if the amendment process falls short, it can shine a spotlight on the super PAC phenomenon and help apply pressure for change.”
Apply pressure where? The extraordinary step of a constitutional amendment presumes that no less cumbersome legislative solution is possible. So the only effective pressure could be applied on the Supreme Court. The only change could come from the justices themselves.
The court may not follow the election returns, but the justices certainly follow elections — and it’s fair to call their attention to the real-world consequences of their naive campaign finance jurisprudence. Writing for the Citizens United majority, Justice Anthony Kennedy breezily asserted that unlimited independent expenditures “do not give rise to corruption or the appearance of corruption.”
Earth to Justice Kennedy. Have you looked at the size of these checks? The donors to super PACs traveling with the supposedly independent candidates? The supposedly independent super PACs staffed by the candidate’s top advisers — um, I mean ex-advisers. The Messinas and Axelrods trooping to Democratic super-PAC events to help raise money for the supposedly independent effort?
Would the prospect — threat? — of an amendment have an impact on the court? Is it proper for a president to seek to pressure the court this way?
As a philosophical matter, I don’t like the notion of tinkering with the Constitution; the fundamental problem is not the First Amendment but an interpretation of it that frustrates any effective rules on campaign spending. As a practical matter, I worry that starting down the long road to a constitutional amendment would detract attention from more achievable options, such as the Disclose Act.
I’m dubious that the court, if it is the intended target, would succumb to the pressure of a looming constitutional amendment. I’m fine with the president criticizing the court — yes, even to its face, in the State of the Union. But I’m uncomfortable with the apparent approach of using a proposed amendment as a device to get the court to rethink. As with the president’s while-the-health-care-case-was-pending rant about “unelected” judges threatening to overturn legislation, it makes me queasy.
Then again, so does the spectacle of hundreds of millions of dollars funneled into campaigns by a few individuals and special interests.
Read more from Opinions: Ruth Marcus: An end run around campaign finance laws E.J. Dionne Jr.: How to beat Citizens United The Post’s View: Mitt Romney’s flawed plan to ‘fix’ campaign financing