So far, the 2012 election cycle has been everything the critics of the Citizens United decision expected. Mitt Romney is leading the race for the Republican nomination not because voters like him or his vision for the country, but because limitless quantities of money are available to tear down any serious rival. Newt Gingrich is able to stay in the race because one tycoon has decided that’s a good idea, and Rick Santorum has a super-rich sugar daddy as well. (Even so, a Romney-supporting hedge fund billionaire thinks the ultra-wealthy have “insufficient influence” on politics. I have a hard time picturing what would please him.)
Meanwhile, it’s been reported that the Koch brothers have pledged $60 million to defeat President Obama in the fall, and other plutocrats allied to them have offered $40 million more. Karl Rove’s Crossroads SuperPACs are planning to raise and spend $240 million, and there are many, many other such groups. That’s all in addition to whatever the Republican Party and its candidate spend.
So despite being opposed to SuperPACs in theory, President Obama has come to the conclusion that going into an election without one would be like playing in the American League without a designated hitter or refusing to take 3-point shots in the NBA; whether you think a rule is good for the game or not, you don’t have the option of moving to a fantasy world where the rule doesn’t exist.
There’s an argument about whether this is hypocrisy on Obama’s part. I agree with Kevin Drum that it isn’t. One of Drum’s examples applies to me: I claim income-tax deductions that I would do away with if I had the power. Playing by the rules and wanting to change the rules are two different things.
More money, more mud. Money equals speech, says the Supreme Court, and more speech means better democracy. But in practice, more money means more negative misleading speech.
With a little bit of money a candidate can get a positive message out and present an attractive image. But before long everyone has seen the beautiful family and its adorable dog. Everyone has heard that you want to turn Washington around and make America great again. Repeating those ads 24/7 doesn’t help you.
But carpet-bombing a state with charges that your opponent wants to strangle grandmothers, sell little girls to the Chinese, and raise taxes to subsidize terrorist training camps — that works. (It works even better if the charges come not from Candidate Smith, but from some untraceable Coalition to Save America From Everyone But Smith.) The more repetition the better. So the more SuperPAC money, the more negative the campaign.
What to do? This is the world wrought by Citizens United. Even Republicans don’t like it.
According to a new poll by pollposition.com … 68% of registered Republicans want money out of the Super PACs and only 21% said they were fine with it.
Democrats and Independents oppose this new unlimited-money politics by even larger margins. Wouldn’t it be great if we had the kind of political system where large majorities could change things?
Imagine that we do. What then? We could pass legislation to mitigate the worst effects of Citizens United. Or we could pass a constitutional amendment that undoes it completely. Or we could elect people who would appoint justices who would reverse the decision. Failing at that, we could craft legal cases carefully and hope to get the Court to change its mind.
People are trying to do all those things.
Legislation. Judge Kennedy’s decision in Citizens United imagined transparency rules that would allow intelligent voters to know where campaign money was coming from. The DISCLOSE Act would have implemented some minimal transparency rules, but Republicans filibustered it in the Senate. Democrats plan to reintroduce it in 2012.
I’ve googled “Republican alternative to DISCLOSE Act” and so far found nothing. GOP.gov says:
The proposed legislation is a punitive measure for associations of persons who choose to exercise their right to free political speech as guaranteed by the Constitution, and affirmed in the Citizens United v. FEC case.
which isn’t the kind of position that leads to compromise.
The Sunlight Foundation keeps track of this stuff. They’re also pushing the SUPERPAC (Stop Undisclosed Payments in Elections from Ruining Public Accountability in Campaigns) Act.
SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.
It prohibits corporate campaign contributions also allows Congress to pass laws limiting campaign spending in general.
Move to Amend has a similar proposal, which goes on to say:
The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.
Such amendments are drawing grass-root support. Several dozen Vermont town meetings passed resolutions of support earlier this month.
Vermonters are not the first Americans to urge that the Constitution be amended to renew the century-old principle that citizens have a right to prevent corporations from buying elections. Referendums have already passed in Boulder, Colorado and Madison, Wisconsin. Cities across the country, including Los Angeles, have urged Congress to begin the amendment process. State legislatures in Hawaii and New Mexico have done the same.
Lawrence Lessig points out the Citizens United is not literally a corporate-personhood decision, but instead interprets the First Amendment to protect (in Justice Scalia’s words) “speech, not speakers”. So it’s not that Exxon has a right to speak, but that Congress has no power to limit the spread of Exxon’s message. Lessig’s proposed amendment is simpler:
Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.
Non-citizens in this case means both corporations and foreign individuals.
Lessig finds it hard to imagine that any such amendment will get the 2/3 majority it needs in Congress, given that infinite corporate money will rally to defeat representatives who support it. (Several elections would go by before the amendment could be ratified.) That’s why he favors a constitutional convention.
Congress hasn’t voted on any of these yet. Any amendment faces a long, slow road. But both Left (Equal Rights Amendment) and Right (Human Life Amendment) have shown that an amendment is a good long-term goal to build a movement around, even if it doesn’t get adopted.
Judicial remedies. Russ Feingold thinks Citizens United was just a mistake, and the Court needs to undo it. “The best thing to do is to get new justices, different justices, who will do the right thing.”
But the traditions of the Court itself work against such a plan. The doctrine of stare decisis requires the Court to respect the decisions of past courts unless and until they prove unworkable. “I wouldn’t have done that” is not a good enough reason to reverse a decision. That’s why major reversals (like Brown v Board of Education) are rare, and usually come after a long process of trying and failing to make the original decision work (as David Strauss explained in The Living Constitution).
The Montana Supreme Court has attempted an interesting end run around Citizens United. Justice Kennedy’s majority opinion in Citizens United said:
We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.
Five Montana justices said, more-or-less, “Given Montana’s unique history of corruption, things are different here.” That case has been appealed to the Supremes, and it will be interesting to see what they say. Probably they’ll overturn Montana’s decision and reaffirm Citizens United, but Justice Ginsburg might use the occasion to put the Court’s conservative majority on the spot and hold its ridiculous and unpopular reasoning up to ridicule.
Summary. At the moment, we have no immediate prospect of reversing Citizens United. But when you don’t have a bill, you have an issue. Democrats need to pound on this in 2012, because Republicans in Congress are taking positions that are out of step even with rank-and-file Republicans.
A good test case will be Scott Brown. He comes up for re-election this year, and claims to be an “Independent Voice for Massachusetts” rather than a right-wing extremist. He cited a number of reasons for voting against the DISCLOSE Act, including wanting to make it apply to unions as well as corporations, but he never put forward an alternative that he would support. (Republican moderates did the same thing on health care. Snowe, Collins, etc. — they seemed to be considering the ACA and came up with many minor objections to it, but they never said “Add this amendment and I will vote for it.”)
In the old days, the role of the moderates in each party was to craft pragmatic solutions and provide the swing votes to pass them. If they’re not doing that any more — if, instead, they’re just wringing their hands and making excuses for supporting the partisan agenda of their extremist colleagues — then there’s no reason to elect moderates.
The ball’s in your court, Scott. Do you want to do something specific about Citizens United, or are you OK with the system the way it is?