America’s campaign finance system has been awful for many years. But thanks to the U.S. Supreme Court, that bad situation has gotten worse. In its landmark decision Citizen United, the Court ruled that corporations have the same free speech rights as flesh and blood human beings. As such, corporations can spend as much as they want on elections, as long as such spending is not coordinated with a candidate.
The Court’s rationale is based on the need to protect the constitution’s free speech provisions. Of course, there should be a big difference between the speech rights of humans and those of legally created and regulated corporations. But in its zeal to ensure free speech, the Court has extended those protections to corporations as well.
In reaction, the U.S. Senate has advanced an amendment to the federal Constitution reversing two major Supreme Court rulings and reestablishing the authority of Congress to set campaign finance limits. The legislation, introduced by Sen. Tom Udall of New Mexico and cosponsored by 48 Senators, including both Senators in New York, New Jersey, Connecticut, and Massachusetts, is an effort to overturn the Citizens United and McCutcheon v. FEC rulings.
Those two controversial Supreme Court decisions wiped out limits on independent expenditures (which resulted in the use of so-called super PACs) and on the total amount an individual may donate to candidates and political parties.
The Udall amendment states that the First Amendment does not prohibit Congress or the states from setting limits on how much individuals can contribute to candidates for office, or how much can be spent by (or on behalf of) candidates. In addition, the amendment allows that campaign restrictions can treat corporations differently than humans. Lastly, it goes out of its way to say the amendment in no way lets Congress "abridge the freedom of the press."
Seems reasonable enough – ensure that the U.S. Constitution allows for campaign contribution limits and limits on spending as well as treat corporations differently than humans when it comes to political spending.
In classic fashion, the debate over the bill has become almost comical in its tone. Sen. Ted Cruz described it as an attack on free speech that would allow the government to "muzzle" any group it pleased and to ban books and movies it deemed inappropriate.
No matter how outrageous the debate, the outcome will be the same – if there is tremendous public support, there is a shot that the legislation will clear the Senate and help set the stage for the House debate.
But the unified Republican opposition makes it unlikely that the amendment will pass, at least not right away.
Of course, this is not to say that all is lost. There are models that meet current Court standards and which do help balance the political scales. New York City’s voluntary system of public financing for elections does allow those of modest means and connections to seriously run for office. So, it is important for reformers to continue to push for public financing, better disclosure requirements and a robust enforcement system. It also means that we have to push for a constitutional amendment that will overturn the terrible Citizens United decision as well.
As then-U.S. Supreme Court Justice John Paul Stephens said in 2010,
". . . corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their 'personhood' often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established."
He’s right. And with the Senate heading toward a vote – even if the prospects for success are small – we need to let Senators know that it’s long past time to fix the constitution. Humans and corporations are not the same. They should be treated differently too.
Blair Horner is the Legislative Director of the New York Public Interest Research Group.
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