Stirring the constitutional pot

By Ruth Marcus, Published: June 19

The notion of fiddling with the First Amendment should make anyone nervous — especially anyone who has spent a career benefiting from it.

Then again, so should Sheldon Adelson’s $10 million check to Mitt Romney’s super PAC. A system that lets one individual pump so much money into supporting a favored candidate threatens to substitute oligarchy for democracy.

Harvard Law School professor Laurence Tribe has long opposed such tinkering. But writing last week for Slate, Tribe proposed an amendment, since introduced by Rep. Adam B. Schiff (D-Calif.), that would allow “content-neutral limitations” on independent expenditures.

Tribe told me he changed his mind because “there’s no serious prospect” that a majority of the Supreme Court “will see the light in our lifetimes.” Meanwhile, he said, the “distortive effects of Citizens United and its aftermath are becoming clearer every week.”

For all of the lamenting over the 2010 ruling in Citizens United, the trouble began far earlier, in the 1976 case Buckley v. Valeo. Citizens United and a later appeals court ruling simply made clear that the Adelsons of the world could band together — hence, the super PAC — to spend unlimited funds to elect favored candidates. Buckleyerected a distinction between limits on campaign contributions (okay, to prevent corruption or the appearance of corruption) and limits on campaign expenditures (invalid, because they restrict political speech without, the court said, furthering the anti-corruption interest).

The contribution/expenditure distinction has been assailed by both sides. Yet there are valid reasons to limit contributions and to offer more leeway on the spending side. For example, the money that poured into Barack Obama’s 2008 campaign, in limited donations, reflected his immense popular support.

But the distinction collapses in theory, and becomes pernicious in practice, when it comes to independent expenditures. In Buckley and Citizens United, the justices proceeded from a naively rosy view of the corrupting potential of independent expenditures and an unduly narrow view of the governmental interest in limiting them. Such spending, the court said in invalidating a $1,000 limit on independent expenditures in Buckley, “does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.”

Presently? What would the court have said about candidates benefiting from $10 million checks?

The mere “appearance of influence or access,” Justice Anthony M. Kennedy wrote in striking down the ban on corporate independent expenditures in Citizens United, “will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

Take a look at the incestuous staffing of any super PAC, and consider whether you think it operates truly independently — and whether it bolsters your faith in democracy.

This is infuriating, yet I can’t bring myself to support a constitutional amendment. That quixotic enterprise would detract from more practical efforts to tighten rules — stricter limits on coordination between candidates and super PACs, for example — even under existing interpretations. And at bottom, the fault with the current arrangement lies not in the First Amendment but in the Supreme Court’s interpretation thereof.

A federal appellate judge made this clear in a concurring opinion last year in a case involving New York City’s campaign finance law. The high court, Guido Calabresi argued, has erred in finding that the government has no legitimate interest in ensuring that the voices of the wealthy do not drown out others in political debate.

If not, he asked, why is it legal to bar rich individuals from paying others to vote for their favored candidates?

“The critical problem with vote-buying is not corruption; it is rather that allowing the practice would give the wealthiest individuals a huge effect over political elections,” Calabresi said. “This same concern, of course, explains why a state has a valid interest in leveling the playing field with respect to campaign contributions” and, by implication, independent expenditures.

As it happens, 25 years ago this week a senator from Kentucky well versed in campaign-finance issues proposed a constitutional amendment to allow limits on independent expenditures.

“These are constitutional problems,” the senator said, “demanding constitutional answers.”

That was Republican Mitch McConnell, arch foe of campaign-finance regulation — or, as he would put it, staunch defender of the First Amendment.

Still not enough to make me support changing the Constitution. But it does make you think

 Ruth Marcus: Super PACs and stirring the constitutional pot – The Washington Post.

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