Four years after the Supreme Court struck down limits on outside spending in elections, Democrats are pushing to curtail the influence of money in politics. Their favored plan just isn't a very good one.
On Tuesday the Senate Judiciary Committee heard rare testimony from both Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell on the possibility of amending the Constitution to make it easier for Congress to regulate political spending.
Reid said that the Citizens United decision four years ago had created a political dynamic where "one side's billionaires are pitted against the other side's billionaires." McConnell warned that "those in power" would use the authority granted by the proposed constitutional amendment "to suppress speech that is critical of them."
To some extent, they're both right. Political spending by outside groups has skyrocketed since the Citizens United decision, which makes politicians ever more beholden to moneyed interests for their political survival. When the Supreme Court struck down aggregate limits on contributions earlier this year, it further enhanced the ability of wealthy individuals to leverage cash into political capital at the expense of those who can't buy their way into the political process.
But the Democrats' preferred answer, a constitutional amendment, would either be too weak to make a difference or curtail forms of political speech liberals want to protect.
"Either they're not going to stop what many people find objectionable, or they're so draconian that they're likely to squelch many kinds of political speech," said Rick Hasen, a law professor at the University of California-Irvine, of the proposals being considered. "What was nice about the way the Supreme Court dealt with things before Citizens United was that they were able to pick a middle way between protecting First Amendment rights and balancing society's interest in limiting money in politics."
As Hasen detailed in a paper from last October, an amendment proposed by Democratic Sens. Jon Tester of Montana and Patrick Murphy of Pennsylvania would limit constitutional rights to "natural persons," and which could have the inadvertent impact of allowing the State of New York to bar publication of The New York Times.
Another proposal, from New Mexico Democratic Sen. Tom Udall, which Hasen described as "marginally better," would create an exception for the press -- which would be confusing, given that the line between who is and is not a journalist continues to blur as technology disrupts the media industry.
At Tuesday's hearing, which focused on Udall's proposal, Republicans got to compare Democrats to book burners for wanting to do something about a campaign finance system hurtling toward legalized bribery -- Texas Republican Sen. Ted Cruz called his Democratic colleagues "Farenheit 451 Democrats," a reference to the dystopian sci-fi novel about censorship -- and Democrats got to look like they're standing up to the plutocrats with a plan to stop the wealthy from buying elections that has no chance of passing.
“The hearing today is political theater, with both sides able to appeal to their base,” said Hasen. “You can’t even get a disclosure law through the United States Senate, much less a constitutional amendment.”
It's also not clear, Hasen noted, whether deep down many Democrats are more comfortable with the current system than they let on. Despite playing the part of a campaign finance reformer, President Obama hasn't put forth any serious proposals for curtailing money in politics.
The Republican assault on restrictions on money in politics is not over. "I've pretty well come to the conclusion that contribution limits as well ought to fall," Floyd Abrams, one of the attorneys who successfully argued the Citizens United case, told the Senate committee Tuesday. "I think they should be disclosed but it seems to me that we've reached a point both in our jurisprudence and our politics, that if we know what the money is and where the money is coming from that we can trust the public to make a rational decision."
Some Republicans would agree with Abrams that those limits ought to fall, but many would go further. They not only want to see no restrictions on money in politics, they want wealthy donors to be able to contribute anonymously. Hans von Spakovsky, the former Bush Justice Department official turned Heritage Foundation scholar who never met a voting restriction he didn't like, recently compared anonymous political donations to publication of the Federalist Papers.
"The same people who brought us this line of decisions are now attacking disclosure," said Jamie Raskin, a Democratic state legislator from Maryland and law professor at American University who served as a witness Tuesday. "Look at the political realm they want to give to the American people: Corporations are treated like people, they can give on an unlimited basis directly to candidates, they can spend on an unlimited basis and they don't have to tell anybody. Then they whine if anybody even calls a corporation out for doing it, saying that somehow their First Amendment rights have been violated. That's a pretty special First Amendment they've got."
There's a universe of reasonable campaign finance restrictions between legalized bribery and establishing a Ministry of Truth, but none of them are likely to pass anytime soon. Hasen has written that continuing to push for more disclosure, preserving what remains of state campaign finance laws, and bolstering public funding, such with a proposal drawn up by Maryland Democratic Rep. John Sarbanes, should be goals for campaign finance reformers. More effective limits on money in politics however, may have to wait for a Supreme Court friendlier to campaign finance reform.
If we ever get one.