By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law George Washington University Law School. This post is part of an ACSblog Constitution Day Symposium.
As Constitution Day approaches, there is much that will be and should be said in praise of the document that has successfully guided the United States for more than 220 years. But when there is some part of our governance system that is broken, it does not denigrate the Constitution to recognize that and to propose to do something about it. That is, after all, why the Framers included Article V that makes it difficult, but not impossible, to correct a flaw in the grand design.
Over 12 years ago, I signed on to a publication of The Constitution Project entitled "Great and Extraordinary Occasions: Developing Guidelines for Constitutional Change." The authors argued that constitutional amendments should not be used without a showing of great need for an important part of our system and the absence of any lesser means of solving a problem. I continue to hold that view, but have now concluded that those stringent criteria have been met and that only a constitutional amendment can fix the problem of uncontrolled spending in elections for public office. Some would disagree because they believe that elections awash with money from those with strong economic (and sometimes other) interests in the outcome are good for democracy (or for the interests that they support), and hence would oppose such an amendment on its merits. But for those who decry the current excesses in campaign contributions and expenditures, there is little choice other than to amend the Constitution.
Much of the discussion about this issue lays the blame solely on the Supreme Court’s decision in Citizens United. But as I have detailed elsewhere, “It’s Not Just Citizens United,” that decision is only one part of a much larger set of problems, going back to 1976 in Buckley v. Valeo, when the Court held that the First Amendment precluded the Government from limiting the amount of money that individuals could spend to support candidates via independent expenditures. In those days, that may have meant expenditures of at most tens of thousands of dollars, but in 2012 that has ballooned to tens of millions, significant portions of which go through organizations that collect money from multiple sources and whose independence is at least open to question. Citizens United permitted for-profit corporations from doing what individuals can do on the independent expenditure side – albeit with vastly greater resources than all but a very few individuals – and many observers think that the century old ban on direct contributions by corporations is set for a similar demise. Finally, in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, the Court has put a serious crimp in the effort to create a public funding system by outlawing the effort to augment basic public funding to counter massive spending by an opponent that chooses not to be part of that system. Additional disclosure would be good (assuming that Congress can pass it), but alone it cannot be enough to overcome these major rulings. It is possible that the composition of the Court will change, but it is highly unlikely that all of these decisions will be overturned, which is pretty much what is needed.