“Unless we amend the Constitution to say that corporations are not people and that money is not speech, America will soon become a full-blown oligarchy.”
In an opinion piece published on The Huffington Post, Professor of Economics, Jay Mandle of Colgate University, addresses the amendment proposal of Move to Amend. His criticism in “Beyond a Constitutional Amendment” concerns the second section of the suggested amendment language which seeks to overturn the 1976 SCOTUS decision Buckley v Valeo and end the doctrine that money is a form of speech which cannot be regulated. Mandle’s arguments accept the framing by James Buckley before the Court, do not distinguish between the quantity (regulated costs) of speech and the quality (rights of content) of speech and makes a proposal that would do little to end the corruption unleashed by Court decisions.
Professor Mandle begins by noting the financial (corrupt) upshot of both Citizens United v FEC and Speechnow.org v FEC, which empowered super PACs with the following information:
Eduardo Porter in the New York Times estimates that about $75 million in independent expenditures came from corporate treasuries. (1) But what is certain is that there was a massive response to Speechnow. The Center for Responsive Politics believes that what it calls “Outside Spending” increased from $147 million in 2008 to over $1 billion in 2012, roughly a seven-fold increase, one that far exceeded the growth in any other category of spending.
He then makes the following assertion:
A Constitutional amendment has been proposed by some activists as a way to offset the injury inflicted on democracy resulting from those judicial decisions. I doubt that many of the proponents of such an amendment actually believe that its passage can be accomplished in any reasonable time horizon.
Historically, the time frame for the passage and ratification of a constitutional amendment depends on the amount of support a given proposed amendment has. Apparently, Professor Mandle is not aware of the outcomes of ballot measures voted on recently over the question of whether the Constitution should be amended to overturn Citizens United by overturning both Buckley and every Court decision that gave corporations the rights of We the People. Roughly three out of four voters, who have had the chance to vote on these ideas, supported such an amendment. It is the politicians who are standing outside of the Overton Window, outside of public opinion. Therefore, the time horizon is directly proportional to how quickly the corrupt politicians, who refuse to change their views and get inside of the Overton Window, can be displaced by voters. With sufficient efforts by pro-amendment candidates and the President, this could happen after the next election cycle. The 2012 elections were a step in the correct direction, but there are many more pro-corruption opponents to displace. It will likely take longer, but two or three more election cycles is not an unreasonable time frame.
Mandle then takes on the idea of Move to Amend’s amendment proposal, specifically Section 2 which he shortened as “money is not speech and can be regulated.” It actually reads:
Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for public office or any ballot measure.
Federal, State and local government shall require that any permissible contributions and expenditures be publicly disclosed.
The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.
The crux of the matter is the second section. For while the first reverses Citizens’ United and the third is intended to protect media corporations and non-profits, the second aims to broaden the scope of permissible regulation on political contributions and expenditures. At present, under the Supreme Court’s Buckley v. Valeo decision, only corruption or the appearance of corruption can justify regulating contributions and no constitutional justification whatever exists to control political expenditures.
A major problem however exists in this regard. For the plain fact is that curbing political expenditures or contributions does limit expression. Engaging in political speech requires money, and free speech is at issue when there are regulations imposed on the use of money to support a candidate or a point of view. There may be good reasons to regulate. But there is also a civil libertarian cost to regulation. [Emphasis added]
First, what is true “at present” is insufficient to regulate election finances. As he noted, that is the problem. Fat cats are trying to buy election outcomes. As Professor Lessig articulated very well at the Money Out, Voters In conference last month, the current system is corrupt!
Second, there are two, not one, cruxes to the matter, corporate constitutional rights and money as a form of speech.
Third, and this is critical, Mandle accepts the framing proposed by James Buckley before the Court in 1976. “…free speech is at issue when there are regulations imposed on the use of money to support a candidate or a point of view.” Wrong frame! It’s not the content of speech that is “at issue” when the use of money is regulated. That would be a violation of free speech. It is the volume of speech that is “at issue.” Millionaires, billionaires and their super PACs can drown out the free speech of lesser funded candidates thus rendering their speech virtually inaudible. Unless Buckley is overturned, we will continue to have a government of the funders, by the funders and for the funders of elections, i.e., an oligarchy. This is the case no matter what Party the funders are supporting. You would think that a professor of economics, who lists among his interests “Occupy Wall Street,” would grasp the distinction between the volume of speech (something to be regulated) and the content of speech (an inalienable right).
Fourth, the constitutional justification for the control of election expenditures is Article 1, Section 4: the Constitution gives Congress the power to regulate the manner of elections. Establishing a level playing field and a stronger democracy is the only justification Congress needs because they have (or had until the Buckley decision) the power to do just that.
Mandle continues by arguing that “[t]o justify that cost it has to be clear that what will result will be a more democratic system than the one we have now. As written, the Constitutional amendment does not meet that test.” Mandle wants the regulatory outcome of Congress’ efforts to reform campaign finance law to “be clear” in amendment language — before it is passed and ratified — that would return to Congress the power that the Court took from it. He wants to put the cart (legislation) before the horse (an amendment to overturn Buckley)! There can be no certainty that Congress will act (pass campaign finance reforms) to make the system “more democratic system than the one we have now,” but with Buckley in place, Congress and state legislatures have their hands tied.
Then, Mendle’s imagination runs to the corner of nightmares when he writes:
But what will undoubtedly remain is a system in which political funding still remains a private enterprise. It will too much resemble what we have now. At whatever level limitations are set, politics will remain funded by the few, not the many. Though perhaps attenuated, the ability of donors to set the terms of political debate will persist.
“At whatever levels?” Seriously? Congress could 1) set contribution levels at $50.oo per contributor, per candidate and Party and 2) ban all outside spending for advertising by anyone outside of the candidate’s campaign or his/her Party. That, alone, would level the playing field. Move to Amend’s Mike Regan articulated 3) another idea:
One way around the whole conundrum of inordinate amounts of money influencing elections is to circumvent the effects money has. Since most of it is spent to run ads on the public airwaves, and through cables that use public thoroughfares, [one] answer [would be for Congress] to required these “bullhorns of public speech” to provide free time to all parties equally around election time.
These are just three ideas that Congress could deploy to level the playing field and get money out of politics, but that is not possible until the power to regulate the manner of elections is returned to our representatives in Washington by amending the Constitution to overturn Buckley. Regulating the spending of money is not unusual. Legislatures make the spending of money for child pornography, for certain narcotic drugs, for prostitutes, for gambling and to hire a killer all illegal. It’s absurd to stand with the appellees of Buckley v Valeo and argue that Congress cannot regulate spending used to choose the people who write and sign the laws of the land.
Mandle writes: “What is lacking in the Constitutional amendment approach is an alternative funding system, one that gives candidates the option of running for office without wealthy patrons.” That is because these are two different concerns. First the “roadway” needs to be “paved” (amendment), then the “lines” can drawn and “signs” can be posted (campaign finance regulation). The latter is more of interest to Public Citizen, Citizen Action, Common Cause, People for the American Way and Professor Lessig’s root strikers. Proponents of amendments need to lay the “pavement” needed for the regulations to work most effectively. Mandle seems to prefer Move to Amend propose language that would legislate from the Constitution, and that is a very bad idea. That is not how the American system of government was designed.
He adds: “Because that is so, its proponents will find it difficult to justify curbs on the use of money in advocacy.” Curbing the use of money in advocacy during elections is not difficult to justify at all. We want a government that represents the will the people, not the funders of elections. We want elections that are contested on a level playing field, not one that requires legislators to spend inordinate amounts of their time raising money to compete with billionaire-backed, corporate tools.
Mandle claims: “Not enough is gained in democracy to justify entering the slippery slope involved in limiting the freedom of expression, even of oligarchs.” Again, Mandle blurs the distinction between money and speech while ignoring what genuine campaign finance reform can offer democracy (level playing fields).
The author’s final paragraph makes his case:
If a public funding system were sufficiently well financed, it would not be necessary to step onto that slope. After all, what the recent election demonstrated is that though money is the necessary condition for political success, it is not sufficient. What is needed is enough funding to be able to have a candidate’s message be broadly disseminated. With such a public funding base coming from tax money, a candidate could have the best of both worlds: a publicly financed campaign that allows him or her to attack an opponent for being beholden to special private interests rather than to the voters, while at the same time avoiding being tainted as an opponent of free speech.
How much of tax-payer’s money would be required to SHOUT as loudly as super PACs funded by billionaires? Unless Congress has the power to ban and regulate campaign finances, including and especially those of so-called “independent” sources such as Karl Rove’s American Crossroads, President Obama‘s Priorities USA Action and every other artificial entity for that matter, the U.S. treasury would be simply throwing money at a problem that a well crafted amendment can solve at a much lower cost to American tax payers. A publicly funded campaign system may — and perhaps should — be in the mix to replace the corrupted system in place now, but it should not have to financially compete with plutocrats investing in a “pay-to-play” system of government. The framers gave Congress the power to regulate elections, and with Buckley and Citizens United, the Court usurped this power. Both the Human Rights Amendment and Move to Amend’s language would return this power to its rightful place. If history is any guide, Congress will exercise this power by passing laws that enhance the will of the people and restore the integrity of elections. If that is not the case, they — unlike SCOTUS judges We the People disagree with — can be voted out of office. That is what the framers intended when the constructed our form of government as democratic. That is what the integrity movement is working to restore.