First, there was the 2010 5-4 decision in Citizens United v. Federal Election Commission (FEC), allowing corporations and unions to spend unlimited amounts of their funds to “independently” support or oppose candidates for public office.
This was followed back in April by McCutcheon v. FEC, another 5-4 decision, which struck down restrictions on the grand total that a person can contribute to all federal candidates for office.
McCutcheon left intact the caps of $2,600 per general election and $2,600 per primary election that a contributor can give to a single candidate for federal office, along with $32,400 per party or political action committee, but it invalidated the limits of $48,600 for all federal candidates and $74,600 for all party and political action committees during a two-year election cycle. This cumulative contribution limit of $123,200 was more than twice the average American family’s income.
Instead, under McCutcheon a wealthy campaign contributor can now give the maximum amount to every federal office candidate and party or political action committee in an election cycle, a figure estimated to be $3.5 to $5.9 million.
Citizens United was based on the lies that a corporation is a “person,” when in fact a person is a living, breathing human being, while a corporation is an artificially created business entity whose sole purpose is to make money, and money is “speech,” when speech is a communication of thoughts, ideas, emotions, observations and such, while money is a means of economic exchange.
The McCutcheon decision was dishonestly based on a narrow and unrealistic definition of corruption from Chief Justice John Roberts, who said, “The only type of corruption that Congress may target is quid pro quo corruption.”
Roberts went on to say, “Because aggregate limits restricting how much money a donor may contribute to candidates for federal office, political parties, and political action committees do not further the government’s interest in preventing quid pro quo corruption or the appearance of such corruption, while at the same time seriously restricting participation in the democratic process.
“Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials.”
The reality, of course, is that big campaign contributions do buy influence and access, and there are plenty of other forms of corruption besides blatant quid pro quo bribery. These include undue influence, conflicts of interest created by too-cozy relationships, fear of getting hammered by a flood of negative ads, and the appearance of such behavior. The practical effect of legalized bribery occurs when politicians decide issues not on their merits or the desires of their constituents, but according to the wishes of those who have bankrolled their campaigns.
In the McCutcheon decision, Roberts compared the overall contribution limits to restricting the number of candidates a newspaper can endorse, which was a false analogy. A newspaper’s candidate endorsements are an exercise of freedom of the press, designed to influence voter behavior. A campaign contribution, on the other hand, is aimed at controlling the acts of office holders for the donor’s financial benefit, essentially investing in politcians. The bigger the contribution, the bigger the influence
Along with the increased corruption, Citizens United and McCutcheon are undermining democracy, leading the U.S. on a path to becoming a plutocracy that is of, by and for the corporations. Meanwhile, these decisions have unleashed a flood of campaign cash, most of it spent on negative TV ads filled with lies.
The response to Citizens United and McCutcheon is a proposed constitutional amendment, Senate Joint Resolution (S.J. Res.) 19, introduced by Sen. Tom Udall (D-NM), and House Joint Resolution (H.J. Res.) 20, introduced by Rep. Jim McGovern (D-MA). It is designed to restore the authority of Congress and the states to limit campaign gifts and spending in all categories.
S.J. Res. 19 states:
“To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
“Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
“Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.”
While this proposed constitutional amendment doesn’t abolish corporate personhood or define money as not being speech, it would give Congress and the states the authority to regulate campaign spending.
Udall has gathered 43 co-sponsors for S.J. Res. 19, 41 Democrats, including Michigan’s Debbie Stabenow, and the two independents who caucus with the Democrats. There are no Republican co-sponsors.
On June 18, the amendment was adopted by the Senate Constitution, Civil Rights and Human Rights Subcommittee, apparently on a 5-4 party line vote. All the subcommittee’s Democrats are co-sponsors. It now moves to the full Senate Judiciary Committee, which is scheduled to take it up on July 10.
If S.J. Res. 19 makes it through the Judiciary Committee, it is expected to reach the Senate floor either later in July or after the August congressional recess.
But amending the constitution is a long and difficult process. It takes a two-thirds majority in both houses for a constitutional amendment to get through Congress. Given firm Republican opposition, S.J. Res. 19 is unlikely to pass this year, when Democrats and the independents in their caucus have a 55-45 majority. And H.J. Res. 20 has gone nowhere in the House, which has a Republican majority.
If an amendment makes it through Congress, it must then be ratified by three-quarters of the state legislatures, amounting to 38 states.
The damage from Citizens United and McCutcheon needs to be undone, and S.J. Res. 19 can accomplish this feat, but it will probably take years for this amendment to become a reality.