Free speech

Senate fails to pass campaign spending reform amendment

Senate Republicans unanimously voted against a proposed constitutional amendment today that would, among other things, repeal Citizens United.

Will Caron

A constitutional amendment that would have put limits on campaign fund-raising and spending and would have overturned the Supreme Court ruling in the Citizens United v. Federal Election Commission will not be adopted this year, as campaign finance reformers had hoped.

The proposal to authorize such an amendment needed 67 votes to clear the Senate, after which it would have needed to win two-thirds approval in the GOP-controlled House as well as approval from at least 38 state legislatures. Most analysts believed that would be essentially impossible, but the proposal did not even leave the Senate floor. Not a single Senate Republican voted in favor of the proposal.

Supporters of the proposal argue that such a measure is necessary to help reduce unprecedented amounts of money being spent by corporations, unions, associations, wealthy individuals and their respective Super PACs to influence elections, while opponents maintain it would hurt free speech and political participation.

The vote today highlights one of the biggest problems with initiating campaign finance reform, which is that the issue has become completely polarized along party lines, with Republicans essentially unified in opposition to any form of restrictions. As we saw with the 2002 McCain-Feingold act, bipartisanship is essential to accomplishing campaign finance reform. Unfortunately, Citizens United has only furthered the political-influence gap between elite, (often) Republican-supporting entities and individuals, and ordinary citizens.

The amendment would have done three things:

SECTION 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

When considering whether certain restrictions on election spending are constitutional, the Supreme Court has historically taken two things into account: the First Amendment right to freedom of speech and the governmental interest in preventing corruption. The Citizens United case demonstrates the current Court’s majority opinion that freedom of speech extends to the spending of money on elections.

More specifically, the Court has ruled that laws capping how much an individual or group can donate to a particular candidate are acceptable because they help prevent corruption, but that overall caps on the amount any candidate or corporation spends on elections are unconstitutional, because they muzzle speech without specifically preventing corruption.

The amendment specifically states that both Congress and state governments can set “reasonable limits” on the “raising and spending of money” meant “to influence elections.”

Republicans argue that this would alter the Bill of Rights, something that has never occurred in the history of the United States. In fact, the amendment does not actually strike out any text from the First Amendment, or any other part of the Bill of Rights. All it would do is overturn the current Supreme Court’s majority (5–4) interpretation that the First Amendment prevents caps on election spending, an interpretation that has its roots in the 1976 case Buckley v. Valeo.

SECTION 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

This section specifically targets the Citizens United v. FEC case. In that case, the Supreme Court ruled that the First Amendment allows corporations, unions and associations to directly spend unlimited amounts of money on elections, arguing that corporations and other entities are merely groups of people joined together for a common cause.

The amendment would not actually have completely rejected that notion of “corporate personhood.” The concept has actually proved crucial in defending rights like freedom of the press and freedom of association. Instead, the amendment simply states that, when it comes to “spending money to influence elections” in particular, Congress and the states have the power to treat corporations and unions differently than people, even prohibiting them from spending money on elections at all. The amendment, therefore, would allow Super PACs to be banned. These restrictions would not automatically take effect, but would simply allow Congress the power to put them into effect.

SECTION 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

Despite the fear-mongering that Senator Ted Cruz (R-TX) has been drumming up, the amendment would not, in fact, jeopardize freedom of the press (Cruz said recently that the “abominable” amendment would allow political satire to be criminalized). This section clearly rebuts that notion.