CommonSenseMan Blog
1/25/12
Whenever I voice concern over a constitutional amendment being the favored solution for ending special interest control of government – something I strongly favor – there seems to be some consternation or confusion over what people see as a disconnect. The reality is I would be fine with an amendment if I thought it would be effective, but the fundamental problem is that there are two probable outcomes I can see emerging from taking this approach; and neither is good. They are:
1. It would fail to pass because it included everything necessary to truly solve the problem, thereby failing to garner the broad support necessary for passage.
2. It passes, but fails to fully solve the problem, while a public exhausted from the extraordinary effort required to pass an amendment (and thinking the problem generally solved) lacks the willpower to finish the job. The end result would be a feel-good reform which offered slight improvements, but where the majority of money would simply divert into new/different channels, leaving special interests in power and falling far short of the goal of reclaiming government from the 0.01%.
This is why I have primarily advocated for an approach other than an amendment; and will continue to do so. In fact, the recent call by Mitt Romney (and others) for the elimination of contribution limits entirely (due to the outsize effect of Super PACs in the GOP primary) gives credence to my solution The Common Sense Cure. I still believe it a better approach to act legislatively by electing politicians committed to a specific nonpartisan solution (thereby giving voters the ability to vote directly on the issue) which, in exchange for eliminating contribution limits, would put in place reforms to offset the effect of money on elections.
However, there is also recognition that the push for an amendment is a moving train which will be difficult to stop at this point. This is one of the primary reasons for the newly-formed collaboration with Americans United to Rebuild Democracy; a group seeking a nonpartisan approach like The Cure, but whose approach requires a constitutional amendment. If the solution must be an amendment, it is especially critical to actually listen to the voices of people from across the political divide when drafting language, because passage will require the buy-in of more than just one ideological group. The Rebuild Democracy model offers a nonpartisan approach capable of winning broad support, while offering a solution which comes closest to actually ending special interest control.
Currently there are three themes of amendment language most widely discussed: ending corporate personhood, declaring that money does not equal speech, and mandating publicly funded elections. Of course there are others, but most share similar shortcomings, fail to meet the criteria already outlined and/or lack much popular support. So for the sake of brevity this examination will focus on these three approaches:
1. Ending corporate personhood: The concept is fine but the first question is, are we talking about ending the ‘personhood’ of just corporations or all types of groups? One answer raises free-speech concerns when we are talking about public interest groups (like the NRA or Sierra Club) or professional trade groups; and perhaps even unions. The opposing answer raises the political concern that conservatives will feel that the special interests most closely aligned with their ‘side’ are being silenced, while unions & other liberal donors are unaffected. Both sides have historically attacked reforms giving this appearance with near-universal ferocity.
The other problem with an amendment which only ended corporate personhood is that all it would really accomplish is putting the power to control corporate political spending in the hands of congress. This would be the same congress thoroughly corrupted by special interest cash and full of members keenly interested in boosting the prospects for their own re-election. Wealthy donors could still donate to campaigns individually, just as they could prior to Citizens United, and bundling and other means to stretch contribution limits would all still exist. In light of this, what sort of laws are people hoping to see emerge in the wake of an amendment? If it’s loophole-filled and incumbent-friendly they’ll probably be in luck.
Don’t get me wrong, I am offended by the idea that a construct which cannot die and feels nothing is given the same rights as you & I; especially in regards to its ability to dominate the public conversation both politically & otherwise. But that is a different issue from how best to fix a corrupt and broken government. An amendment ending corporate personhood might make people feel better, but in the end it wouldn’t really accomplish a whole lot without additional reform; unlikely to happen given the way it is being sold. Sure it would allow congress to regulate corporate political donations and rein in Super PACs, but would they? And really, do we need an amendment just to accomplish that? Simply put, there are higher priorities than ending corporate personhood, especially given both the free-speech & political implications from its inclusion in final language.
2. Money doesn’t equal speech: Again, while it’s possible to favor the idea in principle, the same issues arise in that this by itself would merely give congress the ability to control political spending at its conflict-of-interest-plagued discretion; a somewhat less than ideal outcome. Throw in the free-speech implications it might have on the media, on our ability to organize in legitimate interest/trade groups and the like (and would this change apply only to campaign contributions or more widely; and is that distinction made or left to the courts?); and again the question arises whether this language can win conservative support, regardless of what widely-quoted polls say.
3. Publicly funded elections: As a long-time proponent of some form of publicly funded elections, I fully support the inclusion of this provision; yet still have two concerns. First is that by itself – while it would succeed in offering voters new choice in the form of candidates free from special interest influences – it would also leave these influence-free candidates at risk of being overwhelmed by Super PACs and other independent expenditures. Traditionally the spending floor in political campaigns has been more important than the ceiling, but the ability of Super PACs to dump enormous amounts of anonymous money in a very short period of time into campaigns is somewhat of a game-changer. Publicly funded campaigns alone would be far superior to the status quo, yet ideally any final solution would also address the proliferation of independent expenditures in some manner. (Note: The Rebuild Democracy amendment does not address this issue either; my primary concern with it in its current form even though it otherwise has my support.)
The other concern is political in nature. While many conservatives oppose the Citizens United ruling, their preferred solution is generally not publicly-funded elections. Therefore it seems somewhat unlikely that conservatives would support this approach without gaining something they favor in return; such as congressional term limits.
Of course some proposals combine two or even all three of these approaches, and while the effectiveness increases with the inclusion of each, so too do the free-speech concerns. As those mount the likelihood that conservatives (or even moderates) would support such an amendment decreases exponentially.
People across the political divide are awakening to the idea that with both major parties controlled by special interest money, fixing a broken system becomes more important even than whom we elect. This joins a growing awareness that solving this problem will require traditional political foes to cooperate to some degree. But what has largely failed to occur is for reformers (on either side) to actually shift their thinking and attempt to see things from an opposing viewpoint when contemplating reform. The current crop of proposed amendments – which conflate broad opposition to special interest control of government with broad support for the solutions being proposed – are a perfect example. Without a change in approach, the error of that assumption will become apparent soon enough, to all of our detriment.
Ending special interest control of government, and returning our republic to its rightful owners, requires that we set aside the issues dividing us and focus instead on this single issue which unites us; regardless the final shape of reform. The first step is to actually listen to each other! There is no better time than the present to get started.
Reversing Citizens United (Part 2 of 2): A Misguided Strategy
3 comments so far...
Interesting points, but change terms of debate better than wooing conservatives unlikely.
[...] independent groups unaffected, and so the affect would be negligible. Even so, such an amendment is unlikely to gain the broad support necessary to gain passage, and might have unintended consequences if it [...]
[...] groups unaffected, and so the affect would be negligible. Even so, such an amendment is unlikely to gain the broad support necessary to gain passage, and might have unintended consequences if it [...]
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