National Review Online misinformed about an amendment that would reinstate the ability of Congress to regulate campaign finance and counter Citizens United -- the infamous Supreme Court decision that opened the door for the super-rich and corporations to drown out average Americans in the political debate with unlimited sums of money.
On September 8, the Senate voted to debate the proposed constitutional amendment, which would re-establish campaign finance laws that the conservative justices of the Supreme Court struck down in Citizens United in 2010. That decision overturned part of the McCain-Feingold Act -- much-needed bipartisan campaign finance reforms instituted to prevent corruption of the political process and level the playing field between small donors and the wealthy -- and effectively eliminated limits for independent corporate spending in federal elections. Specifically, Citizens United radically rewrote First Amendment precedent and expanded the legal concept of “corporate personhood,” with the court ultimately deciding that the political spending by corporations was constitutionally equivalent to the free speech of actual human voters. The conservative justices chipped away at campaign finance limits even further this year in McCutcheon v. FEC, which abolished direct contribution limits that worked to control the corrupting influence of multimillion-dollar donations.
Although the proposed amendment is intended to restore the First Amendment to its pre-Citizens United interpretation, right-wing media are already denouncing the Senate's attempts to stem the explosion of unregulated high-dollar donations with wild exaggerations. In a September 9 editorial, NRO complained that Democrats were planning to “repeal the First Amendment” by proposing the Citizens United amendment -- which the editorial board called “an attack on basic human rights, the Constitution, and democracy itself” -- and suggested the move would “censor newspapers and television reports.” From the editors:
Senate Democrats are on the precipice of voting to repeal the First Amendment.
That extraordinary fact is a result of the increasingly authoritarian efforts of Democrats, notably Senate majority leader Harry Reid of Nevada, to suppress criticism of themselves and the government, and to suffocate any political discourse that they cannot control.
The Supreme Court in recent years has twice struck down Democratic efforts to legally suppress inconvenient speech, citing the free-speech protections of the First Amendment in both cases. Senator Reid's solution is to nullify the first item on the Bill of Rights.
The Democrats are not calling this a repeal of the First Amendment, though that is precisely what it is. Instead, they are describing the proposed constitutional amendment as a campaign-finance measure. But it would invest Congress with blanket authority to censor newspapers and television reports, ban books and films, and imprison people for expressing their opinions. So long as two criteria are met -- the spending of money and intending to influence an election -- the First Amendment would no longer apply.
The amendment that Democrats are putting forward is an attack on basic human rights, the Constitution, and democracy itself. If those who would criticize the government must first secure the government's permission to do so, they are not free people.
But NRO's fearmongering over censorship misrepresents the plain text of the proposed amendment, which explicitly exempts media organizations. The amendment unambiguously states that “nothing in this article shall be construed to grant Congress the power to abdridge the freedom of the press.” Instead, the amendment proposes giving both Congress and state legislatures “the power to regulate the raising and spending of money and in-kind equivalents” for local and federal elections. This is a regulation of spending, not of the ensuing advocacy material, which is still protected as political speech under traditional First Amendment doctrine.
The amendment is also not a product of “authoritarian efforts of Democrats” but rather the product of a widespread -- and bipartisan -- distaste for the current state of an American democracy increasingly controlled by vast amounts of political spending directed by the very few. A recent poll commissioned by Public Citizen indicated that “more than three in five voters are opposed” to Citizens United (including 62 percent of independent voters and 58 percent of Republican voters), and majorities of both Democrats and Republicans supported a constitutional amendment to overturn Citizens United. A recent CBS News poll also showed that a strong majority of Americans from across the political spectrum believe that the wealthy unfairly influence elections, that there should be limits on individual campaign contributions, and that campaign spending from “outside groups” should also be limited -- the precise commonsense campaign finance laws that Citizens United and McCutcheon eliminated.
There is indeed an “attack” currently underway on American democracy, but NRO misidentifies the culprit and the victims. As University of Chicago law professor Geoffrey R. Stone points out, even if money equals speech under Citizens United, the current crisis of barely checked political spending provides the constitutional rationale for reinstating content- and viewpoint-neutral campaign finance limits:
[P]oliticians spent an extraordinary $6.3 billion in the 2012 election cycle, and most of that money came from a relative handful of donors who are in the top one percent, indeed, the top one-tenth of one percent, of the American people in terms of wealth.
Regardless of whether one agrees or disagrees with the views of the super-rich, this state of affairs is an unmitigated disaster for American democracy. Not only does it distort our electoral process, but it corrupts our elected officials and disillusions our citizens. Bringing this situation under control, and restoring a sense of order, decency, and equality to our electoral process, are compelling interests, indeed, and the only way to address this threat to our nation's very existence is to limit the magnitude of these contributions and expenditures.