Campaign Finance: Amendment or Law?

BigBatUSA:  The arguments are relevant.  More relevant is the fact that without also fixing ballot access, gerrymandering, and all the other forms of corruption in any electoral reform system, getting money out of corporate and wealthy individual money out of campaigns is a fraction–not the whole–of restoring integrity to our electoral system.

Tip of the Hat to Gretchen the Infidel for pointing out the below contribution..

Five reasons why a constitutional amendment is the wrong way to get money out of politics

By (about the author)

The objective to get money out of politics is the highest priority issue, without which no democratic political agenda can succeed. Money in politics is at the root of all of the country’s political and economic problems.

Some who since Citizens United are discussing this issue have proposed the idea that a constitutional amendment should be pursued to get money out of politics. The idea that this is the best or even a good way to reach that goal is misguided. A constitutional amendment is unnecessary, insufficient, wasteful and otherwise an impractical and even dangerous idea.

The only practical remedy is comprehensive legislation. Most briefly stated, a proposal for a constitutional amendment aims at the wrong problem. The constitution is not the problem; the problem is five plutocratic justices who, having corrupted the other branches of government by mandating a system of money in politics, has entrenched a plutocratic majority on the Court. They do not care about the Constitution or the rule of law. They have intentionally installed plutocratic rule and will continue to maintain this corrupt system until we the people act effectively to stop them.

The constitution itself — unamended — shows us exactly how to do that. Here are the details comparing the proposal for a constitutional amendment with the infinitely preferable alternative of ordinary legislation.

 1.  A constitutional amendment is unnecessary

The Constitution (Art. I, Sections 4 & 5) already gives Congress the power to regulate and judge elections, provided only that they do not use that power to entrench minority rule contrary to the core democratic axiom of one person, one vote.  Prior to 1976 no Supreme Court had encroached on this power of Congress, because the “political question doctrine” had for nearly two centuries precluded them from doing so.  In 1976 the Supreme Court established a metaphor that “money is speech” as a way to intrude upon and limit Congress’ power to guarantee the integrity of elections.

The Exceptions Clause (Article III, Sec.2, Cl, 2, Sentence 2) of the Constitution empowers Congress to take away from the Supreme Court any authority to make decrees overturning state and federal laws designed to safeguard the integrity of elections, or otherwise concerning elections. The Exceptions Clause is the means provided by the Constitution to defend from judicial tyranny the democratic authority of Congress, and of the people who elect Congress. This is a general power to make exceptions to the Court’s appellate jurisdiction — which is the basis for all relevant decisions the Court has made to undermine democratic elections, including five decisions since 2006 by the Roberts 5. The Exceptions Clause would certainly justify removing the Court from the decision of political questions, which were prohibited by the Court’s own decisions prior to 1976.

2. A constitutional amendment is insufficient, and would be less effective than comprehensive legislation because:

a) It is by nature far too brief to cover all of the detailed provisions that will be necessary to effectively remove money from politics. Detailed and comprehensive legislation addressing all aspects of money in politics would be needed to enforce any such amendment in any case.

b) By being inherently brief, abstract in literary form, and general, an amendment could be deliberately misinterpreted in its details by the same Supreme Court that has proven capable of twisting other provisions to its own anti-democratic ends. Those interpretations could open up loopholes not intended by those who supported and voted for the amendment. The Court is no stranger to this tactic. In the first Gilded Age the 14th amendment was distorted so as to protect corporations instead of its intended beneficiaries. Any constitutional amendment in the New Gilded Age could easily be treated the same way by the even more politicized and disingenuous Roberts 5.

  1. It is unwise to give this Supreme Court new constitutional text to interpret. Such text is subject to the Supreme Court’s final word on its meaning (unless Congress can be forced to exercise its Exceptions Clause powers). If an ordinary law is misinterpreted by the Supreme Court, Congress can pass another law expressly reversing the Supreme Court’s decision, rather than go through the lengthy process of amending the constitution just to overturn a bad Supreme Court decision. Unlike a law, a constitutional amendment on a subject within its jurisdiction turns over to the Supreme Court the task of finally determining what it means.  An amendment would give the Roberts 5, who have no fidelity to law, legal process, precedent or logic – only to their plutocrat sponsors, and who are the very cause of the problem,  the last say what the amendment means.By adopting the mistaken idea that the amendment was necessary to support a law, the Roberts 5 could use a distorted interpretation of the amendment to strike down key parts of the law as unconstitutional. Possibilities for mischief are limited only by the imagination of judges who have shown themselves to have very fertile imaginations in service of plutocracy, as well as the ability to create opaque and convoluted legal rationalizations in support of their anti-democratic political decrees. A constitutional amendment — rather than taking power away from the Supreme Court, gives them power to determine the meaning of new constitutional text. A simple law leaves that power with Congress, and the people who elect them.

3.  Attempting a constitutional amendment is wasteful of scarce political capital because it would be many times more difficult and time-consuming than would enactment of a comprehensive law.

The constitutional amendment proposal diverts political capital to an impossible task.

A constitutional amendment process is far more difficult and time consuming than getting a single comprehensive law through Congress. In order to battle corporations and oligarchs to get an amendment passed it would be necessary to first get 2/3d’s of the members of each house of Congress to vote against Congress’ usual paymasters, and then also elect a majority of legislators in 38 states who would resist the growing temptations of political money. Money can be expected to battle any such amendment designed to take away its power at every stage of this process.

To pass comprehensive legislation that would in fact reverse Citizens United and the “money=speech” concept, while plugging all the loopholes by which money gets into politics would require only one law supported by a majority of Congress (provided this majority in the Senate first changed its rules to foreclose a filibuster on legislation involving election integrity.)

Winning a majority vote in Congress is obviously far easier and quicker than winning a 2/3d’s vote in Congress for the proposed amendment plus winning the ratification vote in 38 states. If the former is barely conceivable, the latter is totally inconceivable, no more than wishful thinking.

There has not been a constitutional amendment proposed and adopted since 1971, before the modern era of money in politics started in 1976 with the creation of the Court’s “money=speech” gimmick. The last amendment (#27) was adopted over 200 years after it was proposed. The ERA, the equal rights for women amendment proposed by Congress in 1972 at the tail end of the last era of reform, was the last progressive movement for a constitutional amendment. Though it would have been of direct benefit to a majority of voters, the ERA ratification campaign which was vigorous and successful up to 1975 slowed to a halt after the era of money in politics began in 1976. The ERA fell three states short of success when the period for ratification expired in 1982.

Money gets any constitutional changes it needs from the New Gilded Age Court of the Roberts 5, and has the power to stop any they do not need. There were no amendments passed in the original Gilded Age. Similarly there have been and will be none proposed and ratified in the New Gilded Age.

A constitutional amendment to expand democracy could not be enacted until after legislation is first passed to get money out of politics, just as the progressive era amendments (##16-19) followed the T. Roosevelt-era campaign finance reforms.

A constitutional amendment related to money in politics would be superfluous after passing strong comprehensive legislation to get the Court out of elections and money out of politics. If after the necessary legislation is enacted some unforeseen reason arose to also consider necessary a constitutional amendment on this issue, that would be the time to consider the matter. Now is not the time. There is no reason now to consider or even talk about a constitutional amendment which is a hypothetical exercise at best, if not pure fantasy.

4. Proposals for a constitutional amendment are Counterproductive.

There is danger in undertaking a strategy that is sold as if it is a solution, but can quickly be seen to be at best a very incomplete solution and at worst no solution at all. Such a campaign diverts energy from working on the practical and effective solution that the country desperately needs; it diverts energy to what on its face appears impossible from an approach that appears barely possible if there were total unity and focus by supporters of democracy. A national movement that would dedicate its collective vote to this single issue of enacting a comprehensive law that can credibly promise to get money out of politics could succeed. History shows that only a 10-20% minority of committed voters could win such a law. There is no reason to make a constitutional amendment such a single issue because it can make no such promise to get money out of politics even it it could succeed.

if a constitutional amendment were to somehow succeed, it could create cynicism when it is proven to be ineffective. Thereby it might use up the one last chance citizens may have for peacefully reclaiming democracy in the US. This could lead to disaster since solutions to issues as serious as global warming, perpetual war, peak energy, the monetary system and economy — one could summarize without over-dramatizing, the survival of civilization itself — are all at stake in the issue of money in politics.

History shows that a constitutional amendment cannot succeed in the current political context. If it proves necessary to deploy all available political capital just to get legislation enacted, there would be none left over to pursue wasteful fantasy.

5. Advocacy of a constitutional amendment is dangerous

Irrespective of the availability of time and energy to waste on a misguided idea and still get the necessary law passed, advocacy of the need for a constitutional amendment is dangerous. This is because of its impact on the anticipated future debate over legislation in Congress.

The main, perhaps only effective, defense Congress can make to sidestep efforts to force enactment of legislation to get money out of politics would be: Congress is sorry, they would love to help, but they cannot do that because a constitutional amendment is necessary to deal with the Supreme Court.

We know that is wrong.  But arguing the point in public is not easy. This is an area where Congress itself as an institution can claim expertise. Taking on an attack against the contents of the law is one thing. Congress has no particular expertise on getting money out of politics that others do not have. Congress has notionally been trying for a century and has hopelessly failed. It is clearly time for someone else to try their hand at drafting the prohibition of money in politics. But arguing this issue of constitutional structure and separation of powers is another thing. The separation of powers issue will be much more difficult to argue with Congress than the substance of the law.

Giving a corrupt Congress help by having the people opposed to money in politics actually endorse the very argument most useful to defeat the necessary legislation could pretty much deliver the fatal blow. People tend to stick with the first idea they hear. Advocacy of this bad idea will only make it more difficult to persuade natural allies of the effort to get money out of politics. It will require additional resources to re-educate allies that only a law is actually necessary after they have already been told the contrary by sources they should be able to trust — but cannot.

A wily Congress guided by their corporate paymasters might even actually adopt the constitutional proposal and then let it languish as the plutocrats buy enough state legislatures to kill it off in 38 states. This process could waste another decade, or century, depending on the time Congress allows for ratification.

People advocating a constitutional amendment are playing right into the hands of the plutocrats and helping them make what would be their strongest argument against comprehensive legislation. This could ensure that we never get the only reform that is actually possible and at the same time sufficient. There is not enough margin for error to dismiss this risk as unimportant.

People continue to talk about a constitutional amendment because it takes about 10 minutes to write one, sounds important, and is easier to fit into a soundbite than the many detailed provisions of a comprehensive law. But we do not have the luxury to pursue strategies that consider winning irrelevant. An easy but counterproductive strategy may be good for PR but it is hurting the effort to get money out of politics, which requires a more thoughtful and complex strategy.

What is needed now is for those who oppose the tyranny imposed by money in politics to unite around the most effective strategy – not the most concise soudbite. After more than a year since Citizens United, and the recent even worse decision in Arizona Free Trade Club, this still remains to be done.  Opponents of money in politics are still talking about a strategy that would be both far more difficult to achieve and less effective in result than comprehensive legislation directed at getting all money out of politics, whether it be corporate, the Koch brothers,’ or Rupert Murdoch money, or money from any other private source. Getting money out of politics will take more work than the act of wishful thinking involved in dashing off an impossible to enact constitutional amendment.

You can read about and get involved with the strategy for comprehensive legislation at  
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