The Senate’s initial vote last week on a proposed constitutional amendment to allow Congress to regulate campaign fundraising and spending was somewhat confusing: It passed 79-18, well in excess of the 60 votes needed to begin debate, and the 66 needed for final passage.
But lest you think Republicans had suddenly changed their minds to embrace a bill that most of them regard as an affront to the First Amendment, rest easy: The vote was a strategic move, designed to eat up floor time that Democrats would otherwise have used to force recorded votes on popular legislation they could then have used to batter Republicans with until election day.
Ultimately, it probably doesn’t matter. The measure would give federal and state governments the power to “… regulate the raising and spending of money and in-kind equivalents with respect to …” elections, including the power to limit the amount of contributions and spending in political races.
The amendment, introduced by U.S. Sens. Tom Udall, D-N.M., and Michael Bennett, D-Colo., comes in reaction to a skein of U.S. Supreme Court rulings that have eroded campaign finance reform laws, most notably Citizens United v. FEC, which opened the door to independent political expenditures by corporations and labor unions, and McCutcheon v. Federal Election Commission, which invalidated aggregate contribution limits by a single donor. Democrats and reform activists have expressed concern that future cases could strike down rules that prohibit direct corporate funding of candidates in federal races, for example.
By contrast, Republicans contend Democrats are simply trying to re-write the First Amendment, inasmuch as the Supreme Court has cited the right to free speech as justification for the undoing of campaign finance and spending limits. Money essentially equals free speech, the court held in the famous (or infamous) 1976 case of Buckley v. Valeo. The only way to fix that, Democrats reason, is to circumscribe the meaning of the First Amendment with respect to campaign finance, and the only way to do that is with a constitutional amendment.
At least, that’s the talking point. Few people believe the Udall Amendment has very much chance of even passing the Senate, much less passing both houses of Congress and winning approval in three-fifths of state legislatures. This has given rise to the cynical (read: probably accurate) belief that Democrats simply want this issue as a political cudgel and fundraising tool.
If keeping corporations and unions out of politics is really the goal, there are less intrusive ways to do it. A constitutional amendment that limits political giving to natural persons (as opposed to associations of natural persons, such as corporations, PACs, unions or the like) is one. But this would still allow wealthy individuals such as George Soros or Charles and David Koch to spend a portion of their own rather considerable fortune in an attempt to influence elections.
Another option that raises far fewer First Amendment concerns: A law similar to the DISCLOSE Act, which would allow unlimited contributions and expenditures, provided there was full and immediate disclosure of all spending. This would eliminate so-called “dark money” donated to alleged social-benefit corporations that is spent in political races. It would also prevent donors from forming an LLC and using it to make political donations in secret.
The original version of the DISCLOSE Act was voted down in 2010. (It should be noted that it drew opposition from the ACLU, which said it harmed free speech and privacy rights.)
Whether efforts to regulate money in politics are a cynical political ploy, or an honest effort to wrest political influence from wealthy corporations and influential unions, it’s clear the Supreme Court’s dim view of regulations won’t change until its membership does. That could eventually mean lifting all contribution limits, while at the same time allowing “dark money” contributions to continue. The urgency of reform — real reform, not just rhetoric — will only become more acute.
Steve Sebelius is a Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.