At Slate, Lawrence Tribe has offered a new innovative approach to amending the U.S. Constitution with regard to election reform. Tribe’s proposed amendment is especially valuable, because it doesn’t obsess over neutralizing Citizens United and it doesn’t simplistically demonize corporations (to the exclusion of other people and organizations that warp the election — especially super-rich individuals and shell organization that hide the identities of the donors). Tribe takes serious aim at expenditures, rather than focusing only on contributions. Here is the text of Tribe’s proposed amendment:
Nothing in this Constitution shall be construed to forbid Congress or the states from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures. Nor shall this Constitution prevent Congress or the states from enacting systems of public campaign financing, including those designed to restrict the influence of private wealth by offsetting campaign spending or independent expenditures with increased public funding.
Tribe proposed language focuses on a critically important point. The vast pools of unregulated money flowing into the system don’t merely distort the natural outcomes of elections; they also distort access to politicians between elections:
Expenditures to support or oppose political candidates, however nominally independent—and lately, the purported independence of super PACs has become a national joke—in practice afforded wealthy people and corporations grossly disproportionate access to holders of public office.
Therefore, anyone worrying only about the outcome of elections is missing much of the story. Tribe also argues that proposed amendments declaring that money is not speech miss the mark:
I am not prepared to abandon all First Amendment scrutiny of regulations imposed on financial backing of political expression. What’s crucial is that regulations treat content neutrally, regardless of whether they address speech itself or the funding of speech, and regardless of the speakers at which they aim.
Additionally, as I reported here, the United States Supreme Court has, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, prohibited states from leveling the tilted playing field with public funding. Tribe’s proposed amendment also addresses this huge problem.
It’s not likely that the U.S. Supreme Court will reverse Citizen’s United, not when Justice Anthony Kennedy “infamously claimed in Citizens United that ‘independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.'” Tribe points out the lunacy of this belief, recognizing that big money buys special access. He urges that it is time for a new groundswell of united citizens to demand “commitment to equality of political influence.”
Okay, but what is a “campaign”? Wouldn’t that cover book publishing, documentaries like Fahrenheit 9/11, and the internet? Also, would it grant special privileges to the mainstream media, who are allowed to spend unlimited amounts of money and air time supporting or opposing a candidate?
While this amendment is actually simple enough to be an amendment, it pretty much does for speech what the commerce clause did for commerce: subjects it to regulation, since all speech is paid for unless it’s just your voice. Then you pick up a microphone, or post something on the internet, then you fall under Congress’ constitutional authority.
The content-neutral description is an absurdity, since the content is what makes it a campaign expenditure and bureaucrats will have to be empowered to decide what political speech is campaigning. And really, what political speech isn’t campaigning?
I think the best approach would simply be to ban campaign advertising over the airwaves, completely. No candidates would be allowed to advertise, no third parties. And you don’t need an amendment for that, because it actually is content-neutral and doesn’t grant anyone special privileges. Banning third party advertising while allowing candidates to clog the airwaves is wrong, because it says that candidates have speech rights the rest of us do not. Not by virtue of their money, but because they have more rights than us under the law, a crucial distinction.
Ruth Marcus of the Washington Post wrings her hands, warning that we shouldn’t mess with the First Amendment, even when Democracy itself is at stake. Therefore, she’s not sold on Lawrence Tribe’s approach. Notice her start to struggle as she describes the scope of the problem. I get the impression that if her op-ed were a few paragraphs longer she would have thrown in the towel and said something like this:
“These are extraordinary times that require extraordinary responses. We need Professor Tribe’s strong medicine, which is chemotherapy for the cancer that ails us.”
http://www.washingtonpost.com/opinions/ruth-marcus-super-pacs-and-stirring-the-constitutional-pot/2012/06/19/gJQAWy70oV_story.html?hpid=z2
Public Citizen offers two amendments of its own, in addition to offering a comparison to the proposed amendment of Lawrence Tribe. http://pubcit.typepad.com/clpblog/2012/06/if-you-wanted-to-overrule-citizens-united-how-would-you-do-it.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+ConsumerLawPolicyBlog+%28Consumer+Law+%26+Policy+Blog%29