By Scott Forsyth
The Daily Record Newswire
What to do about the influence of money over elections and in policymaking is an immense topic. There are as many different reforms being proposed as there are critics of the existing system.
Some critics blame the Supreme Court for widening the floodgates of money when it decided Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). Whether the decision significantly altered First Amendment law can be debated. What the decision and, later, lower court decisions did do was foster an atmosphere that anything goes with respect to contributions to advocacy groups not affiliated with a candidate and spending by such groups.
Thus we have the emergence of Super PACs, like the liberal Senate Majority PAC, and “social welfare organizations,” organized under section 501(c)(4) of the Internal Revenue Code, such as Americans for Prosperity, founded by the Koch brothers. The former organizations are required to disclose their donors whereas the latter do not. Both may take unlimited donations.
Those who blame the courts for the problem of excessive money in politics have seized on the idea of amending the Constitution to permit government “to regulate the raising and spending of money” in elections. You may have been asked to sign a petition on the subject, maybe circulated by Move to Amend. Hopefully, you declined because the cure is worse than the ill.
Just last month the Senate Judiciary Committee held a hearing on a resolution proposed by Sen. Thomas Udall of Colorado to amend the Constitution. It is short but raises many concerns.
The first two sections of the resolution would allow Congress and the states to limit “contributions to candidates for election” to office and limit “the amount of funds that may be spent by, in support of, and in opposition to such candidates.”
The third section denies to Congress “the power to abridge the freedom of the press.” The fourth and last section authorizes Congress and the states to implement the limits through “appropriate legislation.”
Existing law, approved by the Supreme Court, already limits the amounts individuals and traditional PACs can directly contribute to particular candidates and bans direct contributions by corporations and Super PACs.
How do the first two sections change the ability of government to regulate direct contributions? If not at all, the sections are redundant. Redundancies are dangerous to civil liberties because they invite the courts to look for additional powers when none were intended.
Existing law, approved by the Supreme Court, insulates from regulation “issue advocacy,” e.g. “Send Cuomo A Message– Repeal the SAFE Act.” Under the proposed amendment, such a communication may be considered, in this election year, a disguised form of express advocacy, i.e., don’t vote for Cuomo because he authored the SAFE Act. New York could then regulate the communication.
Or take Hillary Clinton’s memoir “Hard Choices,” which some critics call a puff piece. If she runs in 2016, could the Federal Election Commission compel her to cease the sale of the book because it promotes her qualifications for office? Remember the communication at issue in Citizens United was a film which the FEC deemed to be too critical of Hillary.
The language about the press leaves open the question of who is the press. The Supreme Court has stated the freedom of press protects the “large metropolitan publisher” right down to the “lonely pamphleteer.”
Is the intent behind the third section to change the scope of the protection? If so, the persons likely to lose out are the lonely pamphleteers. If not, we have another dangerous redundancy. Also, the section does not mention the states. Is this intentional?
Leaving the implementation of the amendment to Congress and the state legislatures runs the risk of abuse. Congress and the state legislatures may use the vagueness of the text of the amendment to target disfavored minority groups on the left and right.
Should the amendment pass, it would be the first to restrict the exercise of a constitutional right. This would be unprecedented. Even the Eighteenth Amendment, which prohibited the manufacture, sale and transportation of liquor, did not touch a societal value embedded in the Constitution since its origin.
Look at what the Eighteenth Amendment brought us — a surge in organized crime. What might be the unintended consequences of changing the terms of the Free Speech Clause?
Those who advocate for the amendment do not explain adequately why the incremental, court-centric approach to regulation cannot correct the real and perceived abuses in campaign finance. The composition of the current Supreme Court may have to change before the pendulum swings back in favor of a greater allowance of regulation.
Fortunately, the chances of three-quarters of the Senate, House and state legislatures approving Udall’s resolution, or any resolution on the subject, are nil. So why do Udall and other Democratic politicians, 41 in the Senate, push the idea? To arouse their base? Is that not what they accuse the House Republicans of doing when the Republicans vote repeatedly to repeal Obamacare?
We can spend our time talking more constructively about reforms which do have a chance of enactment, at the federal or state level, and which do not run afoul of the Constitution. A good example is public campaign financing, in the right form.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to a chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
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