Supreme Court's money debacle: The truth behind Dems' campaign finance amendment

As the left rallies behind a constitutional amendment, here's the scope of the challenge they face

By Jim Newell
Published May 16, 2014 1:49PM (EDT)
Supreme Court Justices Clarence Thomas and Antonin Scalia                                  (AP/Pablo Martinez Monsivais/Jeff Malet Photography, collage by Salon)
Supreme Court Justices Clarence Thomas and Antonin Scalia (AP/Pablo Martinez Monsivais/Jeff Malet Photography, collage by Salon)

Senate Majority Leader Harry Reid has announced that he will support a constitutional amendment introduced by Sen. Tom Udall that would, according to Udall's office, "restore authority back to Congress, individual states and the American people to regulate campaign finance." Another way that people have been describing it is as one that would "reverse recent Supreme Court decisions" -- namely Citizens United and McCutcheon -- "maximizing the influence of big money in politics." Reid has said he will hold "multiple votes" to press the issue ahead of the 2014 midterms.

Here's an excerpt from the transcript of Reid's remarks. As with all other times Reid has opened his mouth this calendar year, he takes a jab at the billionaire industrialists Charles and David Koch.

“I urge my colleagues to support this constitutional amendment — to rally behind our democracy. I understand what we Senate Democrats are proposing is no small thing — amending our Constitution is not something we take lightly. But the flood of special interest money into our American democracy is one of the greatest threats our system of government has ever faced. Let’s keep our elections from becoming speculative ventures for the wealthy and put a stop to the hostile takeover of our democratic system by a couple of billionaire oil barons.”

Suggesting that a proposal would be the silver bullet needed to solve the problems maligning our election spending system is a pretty serious hyping, especially in an area of such exhausting legal whack-a-mole as keeping rich people's money away from politicians.

So, would the proposed constitutional amendment do the trick, and put in Congress' authority all the tools it needs to regulate election spending, from both campaigns and outside groups? Not really, a campaign finance expert tells Salon. The language in the amendment is still too vague to withstand inevitable court challenges.

"I think it's entirely impossible to predict the impact of this amendment, even if ratified, because of the broad language in the amendment itself," Paul S. Ryan, senior counsel at the Campaign Legal Center, a nonpartisan nonprofit that "works for robust campaign finance reform" and enforcement, tells Salon. (No, cool down, this is not Rep. Paul Ryan.) "It only mentions, as far as I can tell, limiting contributions to candidates; it doesn't mention contributions to other entities, like super PACs."

Here's the language of the bill pertaining to candidates for federal office:

SECTION 1. To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on—

(1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and

(2) the amount of funds that may be spent by, in support of, or in opposition to such candidates.

As for part (1), on which Congress can set limits to "the amount of contributions" to candidates, this isn't a change from the Supreme Court's current stance. "We already have limits on contributions to candidates," Ryan notes -- the McCutcheon decision eliminated aggregate donation limits to candidates and parties, but left in place limits on donations to individual candidates. "That provision may be in there in recognition that this Supreme Court might, sometime between now and the ratification of this amendment, declare unconstitutional limits, on contributions to candidates ... so subpart (1) would do nothing under current law and the Supreme Court's interpretation of it."

Part (2) -- giving Congress the authority to set limits on "the amount of funds that may be spent by, in support of, or in opposition to such candidates" -- is where things get even trickier.

"It is entirely unclear from that language," Ryan says, "whether the Supreme Court would interpret that as meaning only limiting 'express advocacy' type expenditures -- expenditures on communications that say 'vote for' or 'vote against' a candidate -- or whether the Supreme Court would interpret it more broadly than that." As in, there's still wiggle room to argue that outside ads that don't expressly advocate for or against a candidate, but still clearly exist to hurt or help one candidate's chances against another, can be allowed -- especially when you're arguing in front of a receptive audience like that of Chief Justice John Roberts.

Ryan explains that this amendment uses "amount of funds that may be spent" instead of "expenditures," the latter of which "is a defined term of art in the law, which has been defined for decades by the Supreme Court to mean 'express advocacy'" communications. He "suspect[s] this proposal avoids that term and instead uses the phrase 'amount of funds that may be spent' in order to not" have this narrowed by the defined understanding of "expenditure."

"But, in doing so," he continues, "it uses this phrase that is defined nowhere in the law. So one of the first questions that would reach the Supreme Court, I predict, is, What constitutes 'funds spent' in support of candidates? ... I would not be at all surprised if this Supreme ...would interpret it as meaning, 'Sure, you can limit funds spent on ads that say vote for or vote against a candidate' -- period -- and allow [no further limits than that.]"

"If the Court were to do that, then that would render this amendment meaningless, really, functionally meaningless, because we know from experience that it is very easy to avoid words like 'vote for' or 'vote against' while still putting together a very hard-hitting election ad."

In sum: The amendment would effectively uphold current law regarding direct contributions to candidates, and as far as outside spending goes, by super PACs and the like, the language is vague enough for the Supreme Court to rule that ads tiptoeing around "express advocacy" are still permissible. And there's no language whatsoever, Ryan also points out, regarding limits on contributions to super PACs -- only on the "amount of funds" that those super PACs may spend.

Another potential loophole comes in Section 3 of the amendment: "Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press." With the modern "convergence" between news organizations and advocacy groups, Ryan says, outside spending groups could simply declare themselves members of the media and apply for press exemptions.

It's difficult to draw up an effective constitutional amendment to combat abuses in political spending because you're trying to rein in what the Supreme Court has determined are, rightly or wrongly, "rights." Ryan points out that successful amendments to the Constitution are almost always -- except for Prohibition, which, of course, was later repealed via amendment -- about expanding rights. It's hard to settle on the right language that's broad enough to solve a major problem while staying arm's-length from an infringement on rights.

Jim Newell

Jim Newell covers politics and media for Salon.

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