Chapter 6

Magic Words

What Should a Constitutional Amendment Say?

We do not need magic to transform our world. We carry all of the power we need inside ourselves already.

—J. K. Rowling

When James Madison wrote the Bill of Rights as our first ten amendments to the Constitution, he didn’t attempt to craft legislation that would cover every foreseeable situation. Rather, he laid out broad values about what our government could and could not do.

Similarly, an amendment that reins in the federal courts from voiding laws that limit campaign spending need not detail every future scenario. Rather, it must establish broad values that legislators, enforcement agencies, and courts will adhere to.

This chapter will examine several past proposals for a constitutional amendment to get big money out of politics and suggest a new one as well. These words could just as easily be incorporated into a court ruling as inserted into a constitutional amendment. Either way, the goal is to establish clear constitutional principles to guide future legislation and litigation.

The public debate and process that gets us there may be as important as the words themselves. Let’s first look at language that has been introduced in the past.

The Hollings-Specter Amendment

This constitutional amendment, a bipartisan effort proposed by Democratic senator Ernest (Fritz) Hollings and Republican senator Arlen Specter during the 1980s and 1990s, said:

Congress shall have power to set reasonable limits on the amount of contributions that may be accepted by, and the amount of expenditures that may be made by, in support of, or in opposition to, a candidate for nomination for election to, or for election to, Federal office.¹⁴⁹ (emphasis added)

The amendment included identical language giving states the power to set reasonable limits for state elections.

The Hollings-Specter amendment was a commonsense approach to reversing Buckley v. Valeo. If opponents to reform and future Supreme Court members used common sense to evaluate this amendment, it would work. However, legislative opponents to the Hollings-Specter language instead used outrageous examples of what might constitute a “reasonable” limit and said the language was too vague. In short, the opposition has not been reasonable.

Can We Please Be Reasonable?

The amendment originally introduced by Senator Hollings did not contain the word “reasonable.” Senator William Roth convinced Hollings to add it to imply that judicial review would still evaluate any limits on campaign money.¹⁵⁰ The Fourth Amendment protects us against “unreasonable” searches and seizures by police. Senator Roth expected the courts would similarly be able to decide what was a reasonable limit based on the congressional debate outlining the purpose of the amendment. For instance, Roth explained:

Opponents also raised the question whether the proposal would authorize Congress to limit editorials. I must say that I never viewed editorials as campaign expenditures, and I believe that most people have the same view. If that point needed further clarification, I would think legislative history could make clear that editorial coverage is not intended to be included within the pending proposal.¹⁵¹

Opponents were not convinced.

Senator Duncan “Lauch” Faircloth noted, “I am not a lawyer, but the term ‘reasonable’ seems pretty loose.”¹⁵² The ACLU claimed that “reasonable” limits on political expenditures would allow Congress to regulate newspaper editorials. Senator Mitch McConnell suggested that Congress could set $5,000 as a “reasonable” limit on what a challenger could spend on an entire campaign.¹⁵³ Senator Bob Bennett complained, “I cannot accept the assurance that Congress will automatically come up with what is the right definition of reasonable.”¹⁵⁴

But if we can’t trust Congress to decide what is reasonable, do we trust the Supreme Court to do so?

Supreme Court members Antonin Scalia and Clarence Thomas issue many opinions that don’t seem reasonable to many Americans. Rather than allowing future congresses and future courts to decide what is reasonable and what isn’t, an amendment should specify the goals of financial campaign limits. Being more specific about the amendment’s goals also can rebut the hypothetical arguments against an amendment raised by opponents.

Let’s Have a Free and Fair Debate

One specific goal that an amendment could stipulate as a yardstick to measure future limits on money in politics is whether the limits serve to enhance a balanced public debate, one where many sides of an issue are heard—not just wealthy viewpoints. This goal enhances the wisdom of the crowd, as discussed in chapter 3.

Congressman Jonathan Bingham first suggested amendment language articulating the “full and free debate” rationale in 1986:

The Congress, having due regard for the need to facilitate full and free discussion and debate, may enact laws regulating the amounts of contributions and expenditures intended to affect elections to federal office.¹⁵⁵

It’s clear that by full debate, Bingham meant complete—one where all sides were heard. But future courts might misinterpret “full” as one with no limits on any side, even if that debate became unbalanced.

During floor debates of his amendment, Senator Hollings offered fair debate as reason to limit campaign spending, noting that a huge imbalance of campaign funds meant the public only heard from one candidate while the other was effectively silenced:

What we are trying to do is give everybody back their freedom of speech. Namely, that I may not be extinguished by money.¹⁵⁶

In 1997, Representatives Richard Gephardt and Barney Frank introduced an amendment that built on Bingham’s ideas but also fell back on the vague “reasonable” standard. It read:

Section 1: To promote the fair and effective functioning of the democratic process, Congress with respect to elections of Federal office, and States, for all other elections, including initiative and referenda, may adopt reasonable regulations of funds expended, including contributions, to influence the outcome of elections, provided that such regulations do not impair the right of the public to a full and free discussion of all issues and do not prevent any candidate for elected office from amassing the resources necessary for effective advocacy;

Section 2: Such governments may reasonably define which expenditures are deemed to be for the purpose of influencing elections, so long as such definition does not interfere with the right of the people to fully debate issues.¹⁵⁷ (emphasis added)

The Gephardt-Frank amendment struggled with drawing a line defining expenditures meant to “influence the outcome of elections.” Arguably, expenditures of money to print a New York Times editorial could fall into this definition. A future court would likely conclude that regulating expenditures by the news media would in fact interfere with the people’s right to fully debate issues and thus be impermissible under this amendment, but it would be better to be clear about this in the amendment text.

Further, the language invites a court to conclude that any reduction in spending prevents a candidate from “amassing the resources necessary for effective advocacy,” as a federal court did with Washington, DC’s contribution limits. It would be better to say that limits may not prevent a candidate from “amassing the resources necessary to rise to the level of notice,” as the Supreme Court did in its ruling on the Missouri contribution limits.

Political Equality—The Self-Evident Truth

The Declaration of Independence observed that it was self-evident that all men are created equal. That’s another good reason to limit the amount of money that any one person spends on political campaigns: to enhance political equality and create a more level playing field.

Senator Robert Byrd addressed the issue of unequal speech head-on when debating the Hollings-Specter amendment:

A continued failure to control campaign costs is actually what is injurious to free speech for all in political campaigns. Money has become the great “inequalizer” in political campaigns. Money talks and a lot of money talks louder than a little money. Would anyone claim that the average citizen or the small contributor has the same access to, and influence with, politicians as the major contributor or the big PAC representative? Whose opinions are heard?¹⁵⁸

In 2013, Congressman Jim McGovern introduced an amendment with language to establish equality as a reason to limit big money in politics, saying:

To advance the fundamental principle of political equality for all, Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to federal elections, including setting limits on (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and (2) the amount of expenditures that may be made by, in support of, or in opposition to such a candidate.¹⁵⁹ (emphasis added)

In 2014, Senator Tom Udall combined elements of the McGovern equality language and the integrity of elections language with the “reasonable” language of Senators Hollings and Roth to arrive at the Democracy for All amendment:

To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.¹⁶⁰

The Democracy for All amendment would notably uphold not only limits on the size of contributions, but also the “can’t vote, can’t contribute” rule limiting the geography of contributions.

How to Keep Out the Press

In order to clarify that the “spending of money to influence elections” did not include newspaper editorials and similar activity, the Democracy for All amendment added, “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.”

Nonetheless, opponents to the amendment such as Senator Ted Cruz immediately did construe the amendment to do just that. It was Udall’s amendment with its explicit press exemption that Cruz claimed would allow Congress to jail producers of political satire like Saturday Night Live.

In order to rebut the hyperbolic arguments of Senator Cruz and others, an amendment could authorize limits on “political advertising and campaigns” as a tighter description of “raising and spending money to influence elections.” Nobody thinks of Saturday Night Live or a New York Times editorial as a political campaign or an advertisement even if they do involve spending money.

Should We Empower Legislators or Restrain the Courts?

Most of the amendments introduced by Congress include language granting Congress and the states the authority to set limits on campaign contributions and spending. This language suggests that this is a new power being given to the government, rather than more accurately recognizing that Congress and the states have always had this power and the courts have been wrong to restrict it.

We might also want to leave open the possibility that someone other than members of Congress should set their own campaign finance rules. As some states have done with the redistricting process, it might make sense to remove any self-interest by having an independent commission establish campaign spending and contribution limits or requiring the executive branch, or the states, to set limits for congressional races while having Congress write the rules for presidential campaigns. Inserting language authorizing only Congress to set limits for congressional races reduces our options in the long run.

“Although some see efforts to reverse Citizens United in the courts, or limit its effects by statute, as competing with efforts to pass a constitutional amendment, they are in fact complementary.”

Representative Adam Schiff introduced an amendment that more clearly restrained the ability of courts to strike down limits without implying that government was being granted any new powers: “Nothing in this Constitution shall be construed to forbid Congress or the States from imposing reasonable content-neutral limitations on private campaign contributions or independent election expenditures.”

Retired Supreme Court justice John Paul Stevens suggests something similar to Schiff, which also replaces the “expenditures to influence elections” language of many amendments with spending on “election campaigns”:

Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.¹⁶¹

Stevens’ language, like others, still relies on the vague “reasonable” standard and fails to offer either political equality or full and fair debate as more specific metrics of what is reasonable. However, if we combine Stevens’ approach with the best elements of other amendments, we arrive at this:

To advance democratic self-government and political equality, ensure a fair and balanced debate, and protect the integrity of government and the electoral process, nothing in this Constitution shall prohibit limits on the amount of money spent in, or given to, election campaigns or political advertisements.

Evolving Language

This narrowly tailored amendment is more precise than the versions that preceded it. For example, limiting money spent in election campaigns could not possibly mean censoring the news media that is purchased by the consumer in the way that regulating “expenditures to influence elections” could be. Nor would a federal bill that limited challengers to spending only $5,000 on their entire campaign, or that banned independent expenditures, further a full and fair debate. Indeed, the opposition to previous amendment proposals has strengthened this proposal—as it should have. That is, after all, the purpose of debating the issue—to lead to better public policy.

Yet these words are not magic.

Any of the above amendments could have done the job of overturning the Supreme Court’s ruling in Buckley v. Valeo. Further refinements and perfections could have come from future court rulings interpreting and applying the amendment as well as by legislative bills and executive agency enforcement rulings that included findings as to how the amendment applied to contemporary situations.

Some activists despair that there is not one magic amendment that solves our problems of imbalanced political discourse once and for all. Rather than celebrate the many ideas put forward, these activists seek only one idea to rally the public around. While we will indeed arrive at “final” amendment language, Congress will keep perfecting the text up until a final version is proposed to the states for ratification.

History shows us that even after ratification, amendment text continues to take on new meanings as time evolves. Courts, legislatures, and executive agencies will interpret any amendment for good and for ill.

We have seen courts infer that the Fourteenth Amendment, which was passed to protect former slaves from discrimination, also protects corporations as separate “people” with rights above and beyond those of their shareholders. For a more positive example, we should look at the language of the Sixteenth Amendment, which Congress stripped of the word “progressive” to describe the income taxes it authorized. Nonetheless, Congress proceeded to enact a progressive income tax, and the Supreme Court upheld it in deference to the overall intent of the movement that passed the Sixteenth Amendment.

What If Judges Ignore an Amendment?

Even if we successfully amend “perfect” language into our Constitution, there may still be members of the Supreme Court unwilling to go along based upon their own personal ideologies. In fact, despite passage of the Sixteenth Amendment to explicitly authorize income taxes, courts during the Lochner era still struck down federal taxes on investment income—arguing it was only “earned income” that the amendment authorized.¹⁶² It took the political force of Franklin D. Roosevelt to reverse that interpretation.

To make sure that errant or ideological members of the Supreme Court do not undermine or pervert the meaning of any constitutional amendment, the people need to keep the tools of defiance and impeachment sharp and ready.

Although some see efforts to reverse Citizens United in the courts, or limit its effects by statute, as competing with efforts to pass a constitutional amendment, they are in fact complementary. We cannot be sure which will prevail first, but we do know for sure that they are all necessary to bolster one another and ensure the long-term viability of each.

Self-government is more a journey than a destination. This does not make our walk down that path any less meaningful. Each generation of Americans will have to struggle to win and maintain the promise of political equality and the ability to conduct a full and free public debate. The price of liberty is eternal vigilance—a challenge we should not despair but should celebrate, for this struggle is what brings meaning to our collective lives and is what democracy is all about. Overturning Citizens United is part of this journey.

What you can do: Recruit cosponsors

Write your members of Congress and ask them to cosponsor every constitutional amendment that would overturn the Buckley v. Valeo ruling and authorize limits on political campaign spending.