And So the Sale of Our Democracy Rolls On

By Charles Pierce, Esquire

07 June 14

ost in all the noise -- and all the towering bad taste -- of the coverage of the Bowe Bergdahl story this week was the fact that the Senate began the long and laborious and (I suspect) utterly futile work of crafting a constitutional amendment to try and repair the damage done to democracy by the efforts of the current Supreme Court, in its Citizens United and McCutcheon rulings, to legalize influence peddling and to privatize general political corruption. Senator Tom Udall of New Mexico -- whose uncle I strove mightily to put in the White House almost 40 years ago -- brought a proposed constitutional amendment before the Senate Judiciary Committee that would reverse those decisions, and try to stem the flood of corporate and private -- and largely unaccountable -- money that promises to swell even further over the next several election cycles. As Amy Howe of ScotusBlog reported:

Senator Patrick Leahy (D-Vt.) opened the hearing by describing the goal of the proposed amendment: "to repair the damage done by a series of flawed Supreme Court decisions that overturned longstanding precedent and eviscerated campaign finance laws." Leahy emphasized recent rulings in Citizens United v. Federal Election Commission, holding that the government may not prohibit corporations or unions from spending money to support or denounce individual candidates in elections, and McCutcheon v. Federal Election Commission, striking down aggregate limits on campaign contributions. In his view, the Court has "opened the floodgates to billionaires who are pouring vast amounts of unfettered and undisclosed dollars into political campaigns across the country." Leahy emphasized that he had "long been wary of attempts to change the Constitution because I have seen" such proposals "used, like bumper stickers, merely to score political points." But in his view, an amendment is necessary here because the Court's decisions in Citizens United and McCutcheon were "based . . . on a flawed interpretation of the First Amendment."

Howe states quite correctly that this proposal does not stand a snowball's chance of ever becoming an actual constitutional amendment, but Udall's effort at least clarified the positions of both sides.

Leahy was followed by Senator Charles Grassley (R-Iowa), the Committee's ranking Republican member. Leahy had previewed some of the key themes that other supporters of the amendment would echo in the hearing, and Grassley did the same for Republicans. He contended that, "today, freedom of speech is threatened as it has not been in many decades," and he observed that the proposed amendment would be the very first amendment in history to the Bill of Rights. Grassley warned of the amendment's potentially broad sweep, cautioning that it could, for example, allow Congress to eliminate campaign contributions altogether. "It's outrageous," he concluded, "to say that limiting speech is necessary for democracy."

(I would also argue to Senator Grassley that the Reconstruction amendments certainly were "amendments" to the Bill of Rights in that they ordered to states to abide by the original provisions of the Bill of Rights.)

And that is where the Supreme Court has left us. A debate over the preposterous notion that money is speech, and that more money means more speech, and this in a world in which the same court found reason to gut the Voting Rights Act so that it would be hobbled in the new era of big-money campaigning that the Court inaugurated in its other two decisions. The real joker in the deck is that the decisions -- and Citizens United, in particular -- are written so tightly that any legislative action to reverse them short of a constitutional amendment likely will fail. (And forget about state action. A century-old Montana law banning corporate contributions to political campaign was overturned by this same Supreme Court, which used Citizens United as a precedent for doing so.) However, this isn't the first time that Congress, and citizens, have attempted to propose a constitutional amendment to deal with the consequences of a Supreme Court decision in the field of campaign finance.

As Richard Bernstein recounts in Amending America, his study of the amendment process throughout American political history, in 1980, a group of Washington wise men put together something called the Committee On The Constitutional System, which proposed to update the work of the Founders and to "...identify the outmoded features"of the Constitution "separating them from the good and durable parts of the system." The CCS proposed a series of new amendments, including one that, as Bernstein puts it, would "amend the First Amendment to provide Congress authority to set campaign spending limits (overturning the Supreme Court's 1976 decision in Buckley v. Valeo). Granted, the CCS largely was nothing more than a high-class thought experiment, but its proposed campaign-finance amendment tracks Udall's proposed amendment almost exactly and, like Udall's, it addresses a Supreme Court decision that guaranteed more money sluicing through the system.

The Valeo decision, of course, was the first crack in the dam. In 1971, Congress passed the Federal Elections Campaign Act, which it then amended three years later in the aftermath of the Watergate scandal, which had been financed by a slush fund of unaccountable campaign money. The law limited contributions by individuals and groups, and candidates themselves, as well as providing for a system to inaugurate the public financing of campaigns. It was challenged by a number of people, including then-Senator James Buckley of New York and former senator Eugene McCarthy. In an unsigned per curiam decision, the Supreme Court struck down provisions of the law in a muddled decision in which five Justices, including Chief Justice Warren Burger, dissented in part from the majority's opinion, but most of the dissents argued that the Court did not go far enough in respecting the role of campaign contributions as political speech. (This was the bug in the ear of Burger, who wrote that "contributions and expenditures are two sides of the same First Amendment coin.") The taproot of our present Citizens United-McCutcheon system can be traced back to Burger and his First Amendment coin. Reading the decision, philosopher John Rawls was particularly prescient. Rawls argued that the decision "runs the risk of endorsing the view that fair representation is representation according to the amount of influence effectively exerted."

So the current Court has struck down decades of precedent in the field of campaign finance, and it also has arranged things that the only real remedy is one that is impossible to achieve. The consequences of 40 years of trying to clean up the rot with which big money infects the structure of democracy has been a series of legal decisions that sanctified the rot with the most profound blessing the Constitution can provide. The consequences of those decisions have been entirely foreseeable. If Udall's Sisyphean effort does nothing more than draw all our attention to those simple facts, it will be quite worth the trouble.