Is Judge Stevens Right on the Money?

by  Jeremy Loudenback

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“Spiral Staircase” photo credit: Phil Roeder via photopin cc

The Supreme Court’s recent decision to dismantle limits on campaign contributions has elicited a fervid reaction from many quarters. But it turns out that legal experts and those worried about the influence of political organizations funded by wealthy individuals aren’t the only ones concerned with the issue of abolition of limits on election spending.

You can count former Supreme Court Justice John Paul Stevens as another voice who has been intensely following the highest court’s recent string of decisions that support unfettered campaign spending as a First Amendment right. He’s also got a prescription he thinks might address the rising impact of money in the election process.

On April 2, the John Roberts-led Supreme Court issued its divisive decision on the McCutcheon v. Federal Election Commission case, knocking down aggregate limits on election contributions and allowing wealthy individuals to donate money to an unlimited number of candidates and political committees. The court’s 5 to 4 decision in favor of establishing unlimited political donations as a fundamental democratic right has drawn many comparisons with the 2010 Citizens United case in which the court first established the right of entities like corporations, unions, and other organizations to spend unlimited amounts of money in elections as long as such efforts aren’t explicitly tied to a candidate. As the Washington Post and others have noted, the impact of the Citizens United decision has been markedly apparent in the past two election cycles thanks to an unprecedented amount of money spent during those campaigns, leading to a call for campaign finance reform from former Justice Stevens.

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“ECP banner 9-9-09” photo credit: Public Citizen via photopin cc

In his new book, Six Amendments: How and Why We Should Change the Constitution, Stevens writes that Citizens United represented “a giant step in the wrong direction.” To address the role money currently plays in politics, he suggests a constitutional amendment that would impose “reasonable limits” on the amount of funding that political candidates or their supporters might spend in political campaigns. The idea of a constitutional amendment, with its requirements of two-thirds of the members of Congress signing off on it and the ratification of three-fourths of states, seems like a pipedream in these days of heightened opprobrium of partisan politics. But a clearly worded Constitutional amendment might be the only way to clarify the limits of power that have allowed Super PACs to reshape American democracy on either end of the political spectrum. Ultimately, the details of Stevens’ ideas may not hold up to scrutiny. It’s possible that changing the Constitution could spell trouble for future generations if limits on political campaign funds could be used to successfully curb political campaigns from opposing factions. The end product of less-than precise tinkering could easily make things worse, rather than better.

But the push for campaign finance reform has substantial implications for the increased participation of all citizens in the democratic process and their trust in the governance process. While a Constitutional amendment seems unlikely, the search for solutions is a crucial part of continuing the discussion. Whether it’s an idea from Judge Guido Calabresi of the U.S. Court of Appeals to reframe political speech away from money and toward the intensity of the speaker’s passion or a suggestion from the Brennan Center for Justice to stimulate small-donor campaign contributions with a matching fund system, injecting new ideas into the debate may offer the best hope to move the conversation along faster.