February 7, 2012
To the Members of the 112th Congress:
“Congress shall make no law . . . abridging the freedom of speech.” Two years ago the Supreme Court ruled in Citizens United v. Federal Election Commission that important features of the Bipartisan Campaign Reform Act of 2002 violated this First Amendment ban on laws abridging the freedom of speech. (As you know, this federal law is more commonly known as the McCain-Feingold Act, after the two senators who sponsored it.)
McCain-Feingold prohibited labor unions and corporations, both for-profit and non-profit, from broadcasting “electioneering communications” that mentioned political candidates by name less than 60 days before a general election or 30 days before a primary election. In the course of enforcing the law the Federal Election Commission (FEC) told the non-profit organization Citizens United that its plan to run television commercials for its documentary, “Hillary: The Movie,” would constitute an illegal electioneering communication during the 2008 presidential election.
No opponent of campaign finance regulation ever wounded that cause more than did one of its advocates, deputy solicitor general Malcolm Stewart. Defending the suppression of “Hillary: The Movie” before the Supreme Court in March 2009, Stewart said in response to the justices’ questions that McCain-Feingold’s electioneering communications provision was broad enough to authorize FEC to ban a corporation in the business of publishing books from bringing out a 500-page book if even one sentence discussed a candidate by name. Stewart’s answer elicited audible gasps in the courtroom.
It was no surprise, then, when a majority of the Supreme Court struck down McCain-Feingold’s restrictions on “independent expenditures” by unions and corporations. “If the First Amendment has any force,” the majority opinion stated, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Not only did four justices dissent strongly from this view, but President Obama devoted a weekly radio address to attacking the ruling. The Court had opened “the floodgates for an unlimited amount of special interest money into our democracy,” he said, giving “special interest lobbyists new leverage to spend millions on advertising to persuade elected officials to vote their way – or to punish those who don’t.” Other critics were less measured, calling Citizens United a “devastating decision” that shows “we can’t expect the judiciary to protect average citizens from the power of big money.”
Two years of seething by Citizens United‘s opponents, however, have not produced a coherent response to it. Politicians and activists have proposed various constitutional amendments. One of the most sweeping stipulates that, rather than just limiting corporations’ rights to participate in the political process, corporations shall have no constitutional rights, such as the due process right to sue if the government seizes their property.
One of the ironies of these efforts is that most of the advocacy groups behind them are incorporated, meaning their success would curtail their own ability to affect the political process. The Sierra Club, for example, was fined by FEC in 2006 for distributing pamphlets contrasting candidates’ views on environmental issues. Another irony is that the Left’s causes and candidates have relied as much as the Right’s on political “venture capitalists.” In 1967 a handful of millionaires opposed to the war in Vietnam contributed $1.5 million – worth about $10 million today – to bankroll Senator Eugene McCarthy’s challenge to Lyndon Johnson for the 1968 Democratic presidential nomination. One of those wealthy contributors, an heir to a General Motors founder, bankrolled George McGovern’s presidential campaign throughout 1971 until some primary victories in 1972 allowed it to attract other donations.
The range of political purposes advanced by donated money highlights the central failing of the campaign finance reform effort. Nearly 40 years after Watergate gave rise to the modern wave of reforms, we still have no idea what constitutes a fair campaign finance system. All attempts to define such a system in terms of political processes wind up proscribing or threatening activities, like publishing pamphlets comparing voting records or books critical of politicians, at the heart of both our inalienable rights and a vigorous democracy. In explaining how democracy became a social reality as well as a political one in the Jacksonian era, one historian wrote, “The way to get into American democracy was to get into it. Ask nobody’s permission, defer to nobody’s prior claim.” The campaign finance reform project culminates in a frightening regime change, where the only way to get into American democracy is to get authorization from the political process hall monitors.
Since no one can explain what distinguishes licit from illicit political processes, it’s hard not to suspect that the culmination of campaign finance reform is an intended set of political results. All the efforts to “level the playing field” proceed without reference to any standard of evenness or fairness lying beyond the playing field. The levelers who tilt the playing field this way and that will conclude their work is done when the right team wins, not when they’ve met some comprehensible criteria of procedural fairness. We need to amend the Constitution to overturn Citizens United, one senator maintains, since that decision “tilted the balance of power toward the rich and the powerful at a time when the wealthiest people in this country have never had it so good.” We’ll know we’ve tilted it back just far enough, apparently, when President Dennis Kucinich is delivering his inaugural address.