As someone who has written several books and dozens of major articles on judicial interventions in our politics, and who has covered literally hundreds of campaigns in every state of the country, I have made no secret about my sense that the best response to the U.S. Supreme Court’s decision to let corporations spend freely on campaigns is a constitutional amendment to protect our democracy from being overwhelmed with corporate cash.
For that reason, since the Citizens United v. Federal Election Commission ruling came down, I have highlighted the important work of groups such as Move to Amend and Free Speech for People, which are working on savvy amendment strategies.
Last week, I hailed the introduction of an amendment proposal by Maryland Congresswoman Donna Edwards — with co-sponsorship from House Judiciary Committee chair John Conyers, D-Michigan — and Edwards’ wise observation that: "You don’t amend the Constitution often, but the Supreme Court really has left us with no choice but to change the Constitution and make sure that people own our government and our elections — not the corporations."
There are those who disagree with the amendment strategy, however, and I respect that they are exploring alternative approaches. Indeed, as we noted in the recent Nation editorial on the Citizens United ruling, many supporters of an amendment are also backing milder initiatives, as they recognize that the amendment route can be long and demanding.
Two key members of Congress have developed legislation that seeks to address some of the most serious concerns about the high court majority’s decision to reject more than one hundred years of law and precedent in order to give dramatic new political power to already-powerful corporations — along with other groups that have fewer resources and less ability to influence the elections, such as labor unions.
Senator Charles Schumer, D-New York, and Congressman Chris Van Hollen, D-Maryland, unveiled what is likely to be the primary response of Democratic congressional leaders to a court decision that President Barack Obama correctly warns will "open the floodgates" of corporate influence over our elections and the governing process.
Schumer and Van Hollen –whose efforts to draft legislation have the blessing of House Speaker Nancy Pelosi, D-California, and Senate Majority Leader Harry Reid, D-Nevada — have rejected the calls for a constitutional amendment. At least for now.
Rather, they want to ban donations by "foreign-influenced" and "taxpayer-assisted corporations" — such as government contractors and the banks and financial-service institutions that have yet to repay federal bailout bucks. They have also proposed some meaningful new disclosure requirements on corporations spend money on campaigns directly or through associations and political action groups.
Says Van Hollen: "If you’re AIG or a big Wall Street firm or other firms that received TARP [Troubled Asset Relief Program] monies, until you pay back those TARP monies to the taxpayer, you cannot be using your corporate funds to try and defeat or elect a candidate. That’s just wrong, and we want to make sure that that doesn’t happen."
"Today we’re beginning to pick up the pieces," Schumer explained at the press conference announcing the legislative initiative. "We think this represents Congress’s best remedy."
I’m not sure he’s right.
There is much to be said for the legislation that is being proposed.
I especially like some of the "follow the money" disclosure provisions, which Schumer promised allow monitors of campaign spending to "drill down deep" as they track the sources of funding for political ads. I also like the "shaming" requirement that company CEOs must mouth "I approved this ad" disclaimers — like those uttered by candidates — at the start or finish of commercials their firms buy.
Additionally, it is good that Van Hollen says he wants to include a shareholder approval provision in thiis reform package. Hopefully, it will be mirror a proposal by Congressman Michael Capuano, D-Massachusetts, which embraces the principle — advanced by Public Citizen — "that any corporate political spending must be subject to informed consent of shareholders, and affirmative approval by an outstanding majority of all shareholders should be required of any corporate political expenditures."
Finally, it is especially important that this legislation guarantees candidates who are attacked by corporations or special-interest associations or PACs will have equal access to broadcast airtime at the lowest rates.
By the same token, this is not necessarily the "best remedy" in the legislative arsenal.
The bipartsan Fair Elections Now Act, proposes, in the words of a key backer, Common Cause, to "create a voluntary system that blends limited public funds with a 4-to-1 match on donations of $100 or less. Candidates would be freed from the eternal chase for big campaign checks, able to spend their time talking with voters and addressing our country’s challenges."
"With Fair Elections," Common Cause adds, "candidates would need to rely solely on their grassroots base of support and not Wall Street lobbyists or PACs."
The measure, which has 134 backers in the House and support from a number of key senators, including the No. 2 Democrat in the chamber, Illinois’ Dick Durbin, offers a more far-reaching response.
It is, as well, structured in a way that would be more difficult to challenge in the courts than some of the key provisions of the Schumer-Van Hollen legislation.
Ultimately, the threat of those court challenges makes the best case for keeping a constitutional amendment strategy front and center. My suspicion is that it will be needed. As Public Citizen president Rob Weissman is right when he says: "Last month’s Citizens United v. Federal Election Commission decision gives giant corporations a right to trample our democracy. We, the People, are charged with rescuing our endangered democracy. Fixing Citizens United will require a constitutional amendment to restore the First Amendment and firmly establish that corporations are not entitled to First Amendment speech protections, least of all the right to spend money to influence election outcomes."
But Weissman is also right when he says that the need for an amendment does not argue against taking the boldest possible steps in the current Congress and at the state legislative level.
Whether what Schumer and Van Hollen propose is the "best remedy" is definitely debatable.
But there should be no debate about the wisdom of supporting smart legislative strategies as part of a broad and aggressive response to a court decision that threatens to put our democracy up for sale to the highest bidder.