January 21, 2015

Private: The Top Five Myths About the Democracy For All Amendment

Citizens United, Democracy For All Amendment, Free Speech For People, John Bonifaz

by John Bonifaz, Co-Founder and President of Free Speech For People

Five years ago this month, the United States Supreme Court issued its ruling in Citizens United v. FEC, sweeping away longstanding precedent barring corporate money in our elections and leading to an explosion of outside spending in our political process.  The ruling also sparked a new movement for a constitutional amendment to end the big money dominance of our elections and to reclaim our democracy.  That movement has gained significant momentum, with 16 states and more than 550 cities and towns on record calling for an amendment.  And, last September, the U.S. Senate held an historic vote on the Democracy For All Amendment, which would allow Congress and the states to set overall limits on campaign spending in our elections.  54 Senators supported the proposed amendment, a vote that reflects the power of this growing grassroots movement.

As this movement continues to gain strength, conventional claims made by opponents deserve renewed scrutiny.  Here are five major myths related to this call for a 28th Amendment to the Constitution.

Myth #1: The First Amendment protects the right to drown out other people’s speech.

In its 1976 ruling in Buckley v. Valeo, the Supreme Court equated money with speech and struck down campaign spending limits passed in the wake of the Watergate scandal.  The ruling set us on our current course today of unlimited campaign spending where our elections are sold to the highest bidders.  But, as former Supreme Court Justice John Paul Stevens has said, “Money is property; it is not speech.”  Money, in fact, amplifies speech, and for the very wealthy in our society, money enables them to be heard at the loudest decibels at the expense of the rest of us.  The campaign spending limits at issue in Buckley were reasonable regulations on the manner of speech, not on speech itself.  By equating money with speech, the Buckley Court sanctioned a system which allows the very wealthy – and now corporations – to distort our political process and the very meaning of the First Amendment.

No one has a First Amendment right to drown out other people’s speech.  The Supreme Court stated this clearly in its 1949 case in Kovacs v. Cooper.  In Kovacs, a union in the city of Trenton was blaring its message with a sound truck going down every street.  In response, the city passed an ordinance requiring that sound trucks could only go down every third street.  The Supreme Court upheld the ordinance as a reasonable regulation on the manner of speech.  It found that public streets served other public purposes that needed to be protected and, as Justice Jackson wrote in his concurrence, “freedom of speech for Kovacs does not...include freedom to use sound amplifiers to drown out the natural speech of others.”  The DC Circuit Court of Appeals in the Buckley case recognized this very point in finding the campaign spending limits to be constitutional.  “It would be strange indeed,” the appellate court said, “if, by extrapolation outward from the basic rights of individuals, the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money, and because the amounts they give and spend cannot be limited.”  Campaign spending limits ensure that big money interests may not drown out the voices of everyone else in our political process.

Myth #2: The current campaign finance system is consistent with equal protection principles.

The Supreme Court has long held that wealth cannot be a determinant factor in our elections.  In 1966, in Harper v. Virginia Board of Elections, the Court struck down the poll tax as unconstitutional on equal protection grounds, and in 1972, in Bullock v. Carter, it struck down high candidate filing fees on that same basis.  The Supreme Court also made clear in the exclusionary white primary cases that a process which has become a critical part of the machinery for getting elected must be open to all.

Today’s campaign finance system operates as an exclusionary wealth primary in violation of the Equal Protection Clause.  Voters and candidates lacking access to wealth are effectively barred from the wealth primary, and this wealth primary has become a critical part of the machinery for getting elected.  Almost invariably, those candidates who win the wealth primary – who outraise and outspend their opponents – go on to win election.  A system that pre-selects candidates based on their access to wealth is contrary to equal protection in the political process and offensive to the basic principle of one person, one vote.  Writing for the Court in Bullock in striking down high candidate filing fees in the state of Texas, Chief Justice Burger said, “[W]e would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status.”  We would ignore reality today were we not to recognize that this campaign finance system falls with unequal weight on voters, as well as candidates, according to their economic status.

Myth #3: A constitutional amendment would open the door to other harmful amendments.

The campaign for the Democracy For All Amendment aims to amend our Constitution the same way we have done so before in our nation’s history.  With each of our prior 27 amendments, Congress first passed the proposed amendment (with the required two-thirds vote in each chamber), and then three-quarters of the states ratified the amendment.  This process makes it no easier or harder for other amendments to be proposed.  While Article V of the Constitution does allow for another route to enact an amendment via the calling of a constitutional convention by the states, the movement that has emerged for a 28th Amendment to end the big money dominance of our elections has focused primarily on the route we have used for all earlier amendments.

Myth #4: A constitutional amendment is not necessary.

Some opponents of the amendment movement argue that an amendment is not necessary to address the crisis we face in our democracy with big money dominance of our elections.  Rather, they argue that a voluntary system of public funding of elections will suffice.  But, as important a reform as public financing is, it will not fully address the continued threat posed by today’s regime of unlimited campaign spending.  In the current landscape of Supreme Court jurisprudence on campaign finance, any system of public financing is now threatened by the targeted and unlimited spending of outside groups.

As campaign finance data now clearly shows, the Court’s Citizens United ruling – and the D.C. Circuit Court of Appeal’s SpeechNow.org v. FEC ruling applying Citizens United to SuperPACs ‒ unleashed a new torrent of outside spending by big money forces.  Model public funding laws passed in Arizona, Connecticut and Maine for state legislative races have sought to address such outside spending by ensuring that candidates participating in their public funding systems could receive additional matching public funds when expenditures either by privately-financed opponents or by third parties exceeded the amounts provided to the participating candidates.  However, in 2011, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the Supreme Court struck down that key matching funds provision of Arizona’s public campaign financing law on the grounds that it violated the First Amendment.  In light of the ruling, Maine repealed the matching funds provision of its public financing law the following year.  (In 2010, the U.S. Court of Appeals for the Second Circuit struck down the matching funds provision of the Connecticut law.)  As a result of the loss of the matching funds provision, these systems are now vulnerable to a substantial decrease in the number of candidates volunteering to participate and forgo private campaign funds.

Further, without overall limits on campaign spending, including limits on spending by outside groups, the corrupting influence of such expenditures undermines the effectiveness of a public funding system even when all candidates for a particular office choose to participate in the system.  Take, for example, the 2014 governor’s race in Connecticut.  Both major party candidates opted into the state’s public financing system, yet millions of dollars poured into the state from outside groups seeking to influence the election, with such expenditures exceeding a total of $18 million, far more than the combined amount the candidates received in public funds.  As The Connecticut Mirror reported following the election, “The tsunami of cash, including more than $1 million in untraceable ‘dark money,’ threatens to overwhelm the state’s voluntary system of public financing…”

A constitutional amendment which would end the regime of unlimited campaign spending is, in fact, necessary to protect the integrity of our elections and to allow a voluntary public funding system to be effective.

Myth #5: A constitutional amendment is impossible.

Then there are those who say it just cannot be done – that enacting a 28th Amendment is impossible.  But history tells a different story.  As Nelson Mandela said. “It always seems impossible until it’s done.”

We have done this before in our nation’s history – 27 times before.  Seven of those times to overturn egregious Supreme Court rulings.  We have amended our Constitution to defend our democracy and to expand our democracy.  We can and we must do it again.

And we will.  For as dangerous as this moment is for our democracy, it also presents a unique and historic opportunity to unite around our common vision of America.  The country may be divided on many public policy questions of the day, but we are united behind that basic and powerful idea: government of, by and for the people.  That common vision fuels the current movement for a constitutional amendment to reclaim our democracy.

That is why poll after poll has shown overwhelming support across the political spectrum for this constitutional amendment, why overwhelming majorities of voters support the calls for this amendment whenever they have appeared on the ballot – including 75% support of statewide ballot initiatives in Colorado and Montana in 2012 – and why more than 100 Republican elected officials at the state level have voted in favor of legislative resolutions calling for this amendment.

As James Madison wrote in The Federalist Papers No. 57:

“Who are to be the electors of the federal representatives?  Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune.  The electors are to be the great body of the people of the United States.”

In the name of James Madison, it is time for a 28th Amendment to the Constitution that lifts up the fundamental promise of our democracy and makes clear that we the people – not the corporations or the big money interests – rule in America.