Overturning the 2010 Supreme Court ruling, which opened the floodgates for corporate-funded election ads, is clearly the new hobby horse for Democrats in Congress. President Obama's talking about it, Nancy Pelosi's talking about it, and it's even in the Democratic National Convention platform.
In terms of political practicality, it's about as likely to occur as that supposed apocalypse the Mayans predicted. But that's not really the point. Everyone knows that no matter who is president, 2013 will be a clone of 2011 -- lots of showdowns and posturing, but hardly anything in the way of substantive legislation. So why not rally the base with what sounds like a kick-ass campaign finance reform?
I get that. It's a big part of politics these days.
The problem is, even if it somehow did become part of our constitution, it would be ridiculous, likely horrible policy. It would fracture the First Amendment -- for the first time in U.S. history, making free speech a privilege for some, a right for others.
Let's review -- "Citizens United" ruled that corporations and labor unions, as groups of individuals, have free speech rights to spend money in elections. It didn't say that corporations could donate to campaigns -- not exactly -- but rather that they could donate money to supposedly independent groups, which can spend money to support and oppose candidates.
An amendment to reverse Citizens United has been proposed by many left-leaning groups since the decision was handed down in January of 2010. United Re:Public lists 16 different versions, with authors ranging from Harvard law professor Lawrence Lessig to Russell Simmons. Many amount to mere slogans -- "money isn't speech," -- while others are more substantive.
MSNBC commentator Dylan Ratigan has used his TV show to heavily promote his own version, which states--in full:
“No person, corporation or business entity of any type, domestic or foreign, shall be allowed to contribute money, directly or indirectly, to any candidate for Federal office or to contribute money on behalf of or opposed to any type of campaign for Federal office. Notwithstanding any other provision of law, campaign contributions to candidates for Federal office shall not constitute speech of any kind as guaranteed by the U.S. Constitution or any amendment to the U. S. Constitution. Congress shall set forth a federal holiday for the purposes of voting for candidates for Federal office.”
I wonder if Ratigan has realized that he himself would be one of the first violators of his own constitutional mandate. Doesn't MSNBC--a "business entity" if there ever was one--spend money so he can influence voters? Doesn't he mention, if not endorse, Obama or Romney in the run-up to the election?
Ratigan isn't violating campaign finance law--pre or post-Citizens United--because it makes a distinction between media outlets and everything else. Running an ad that mentions Obama two weeks before the convention? Restricted. But a TV show? It's cool. Michael Kinsley deftly highlighted the oddness of this, as always, in this 10-year-old column.
In theory, that should cause all kinds of problems. But for practical purposes, it seems to work pretty well, at least for now.
But a constitutional amendment is a whole ball of wax. As the media continues to change, diversify, and democratize, an amendment is not only permanent, but it expands in ways the authors probably won't expect. I'm as big of a supporter of journalism as anyone, and I want journalists to have the full protection of the First Amendment. But special privileges, carved out only to us, alongside such other sacred constitutional protections as the right against self-incrimination and privacy? Hell no.
To be fair, none of the amendments I read included that exemption. But I fail to see how it can be avoided. Many include a section to clarify, "Nothing in this amendment shall be construed to restrict the freedom of the press."
The nice thing about the First Amendment, as currently written, is that we don't have to get into parsing what's "freedom of the press" and "freedom of speech," since it's all free. But after this amendment? No longer. Some freedoms will be more equal than others.
Almost any way you try to reverse Citizens United runs into this problem. After all, what's a constitutionally fair way to distinguish a Koch-funded ad from a newspaper endorsement? Or a Fox News commentary? Saying "money isn't speech" isn't good enough. What, a newspaper has a constitutional right to endorse Obama, but it's OK to pass a law banning the spending of money for paper or ink (or a web domain) to distribute that endorsement? Good luck with that.
Who would decide who counts as press and who doesn't? Judges, I guess, the same folks who got us into this mess in the first place.
This turns into an Orwellian fantasy surprisingly fast. If this became the law of the land, during the final six months of an election, the vast majority of the country would find itself shut out of the national discussion in any meaningful public way -- only those deemed qualified by the government would be allowed the sacred right to influence voters.
Or, perhaps, the amendment won't include any exemption, and the media will see its own freedom of expression clipped as well. One can imagine TV reporters in serious tones discussing attack ads from "you know who," and newspapers endorsing "He Who Will Not Be Named."
The Citizens United Constitutional Amendment is fantasy, as law or politics--and that's not even a comment on the decision itself. I'm no fan of it. But decisions, wisely decided or not, can be scalpels, carefully carving out distinctions in current law. Constitutional amendments are sledgehammers, opening cracks in places no one anticipated.
This is all speculation -- I don't know what the amendment is going to say. Furthermore, I don't know what laws Congress would pass under the powers of the amendment. But it's the responsibility of Congress, and Americans, to consider all possible consequences of a change to the constitution.
Of course, none of this matters, because it's a pipe dream. That's fine -- it's all part of the game. But what's funny is that there's an equally unrealistic pipe dream which actually isn't horrible law -- public financing for elections.
Thirty years of campaign finance reform has taught us that stopping money in politics really is like trying to stop a river from flowing down the side of a mountain. The only real hope is to dilute it, with money -- taxpayer money -- fairly distributed to provide something resembling an even field.
But even though it's a standard practice in most Western democracies, public financing is considered a forbidden topic since Al Gore proposed a "Democracy Endowment" in the 2000 race. It's not hard to see why. It sounds like welfare for mudslinging.
So, once this election is in the books, Washington will be consumed with a debate over a provision with zero chance of ever being enacted, and which would be a disastrous policy if it ever did.
Ladies and gentlemen, your Congress at work.