Tuesday, January 26, 2016

Unfortunately for Sanders, There Will Likely Need to be a Constitutional Amendment to Address Campaign Finance

     Independent Senator and Democratic Presidential candidate Bernie Sanders was asked last night during a town hall event hosted by CNN how, if elected president, he would end the national political gridlock.  Sanders responded by saying, “In my view, you have a Congress today that is much more worried about protecting the interest of the wealthy and the powerful and making sure they get campaign contributions from the wealthy and the powerful.”    

     Sanders’s response hits on a key issue that, ironically, has contributed to driving a wedge between the two major political parties; campaign finance.  In a recent op-ed, Congressman Steve Israel (D-NY), former chair of the Democratic Congressional Campaign Committee, announced that one of the things he will not miss following his impending retirement from Congress is “leaving phone messages asking [political action committees] to ‘max out before the end of the quarter.’”  Israel said upon his election to Congress he was “eager to absorb the lessons of history” but this “romance was crushed by lesson No. 1: Get re-elected. A fund-raising consultant advised that if I didn’t raise at least $10,000 a week.” 

     He described a process that involved “hours of ‘call time’ — huddled in a cubicle, dialing donors. Sometimes double dialing and triple dialing. Whispering sweet nothings and other small talk into the phone in hopes of receiving large somethings. I’d sit next to an assistant who collated 'call sheets' with donor’s names, contribution histories and other useful information.”  This depiction is typical of most members of Congress who are expected to pull their fair share in fundraising for their perspective parties – time that could be well spent on other issues. 

     Following the Supreme Court’s decision in Citizen’s United v. FEC, which Israel described as worsening the campaign finance climate, by “ignit[ing] an explosion of money in politics by ruling that the government may not ban political spending by corporations in elections,” and a follow-up case called McCutcheon v. FEC, there will likely need to be a constitutional amendment to ameliorate the concerns of many on the left that, in Sander’s words last night is “an obscene and unfair campaign finance system” that “allows billionaires today to spend as much money as they want through Super PACs to elect the candidates of their choice.”

     Conversely, those on the right believe that money qualifies as constitutionally protected speech and billionaires should be allowed to put as much money into Super PACs as they choose.

     Following the McCutcheon case, which struck down the previous “aggregate limits” that are placed on how much an individual can contribute to candidates, political parties, or PACs during a two year election cycle – members of the Senate Rules Committee examined the current campaign finance systems. 

     Senators Charles Schumer (D-NY) and Ted Cruz (R-TX), who are both on two totally different ends of the political spectrum, aptly exemplified the divide on this issue during the hearing.  It “defies common sense” to say that the Koch brothers’ First Amendment rights would be infringed upon and that they are not being heard by a reversal of the McCutcheondecision, Schumer said.  Cruz and Senator Pat Roberts (R-KS) expressed that the First Amendment protects such “speech.”  We must end this “fool’s errand” of speech infringement, Roberts claimed. This divide is also expressed by members of the news media and punditry.

     For those that believe, as Sanders and Israel do, that the current campaign finance paradigm is ruining the American democracy, a constitutional amendment is likely the only solution. Some have proposed laws that require more detailed disclosures of donors as a means of creating a more transparent climate. However, as law professor Richard Hasen has written, “Democrats and Republicans cannot even agree upon passing laws to fix the gaping holes in our disclosure provisions. Disclosure used to be common ground, but no longer. Remember that the Republican National Committee was one of the plaintiffs in the McCutcheon case.” A constitutional amendment would circumnavigate the Supreme Court' now established precedent as well as the First Amendment implications involved – in so far as one believes that money is speech.

     Until that time comes, members of Congress will continue the uncomfortable “call time” blocks for the foreseeable future.

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