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As The Anti-Citizens United Movement Grows, The Plutocrats Will Surely Attack

Democracy reformers can surmount the coming corporatist attacks.

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The problem with an absolutist approach that provides zero constitutional protections for the spending of any money to influence any election is that it feeds directly into the hands of opponents to offer straw man arguments.  For example, on the Senate floor in 1997, McConnell engaged in a colloquy with fellow reform opponent Republican Senator Pat Roberts of Kansas to mock the Hollings-Specter amendment:

McConnell: “So it would not be inconceivable then that all of us in the Senate and House might decide that what is a reasonable amount of speech for a challenger could be $5,000 in the next election.” 

Roberts “That might be a little harsh.” 

McConnell “We have total power to do that under the amendment.” 

Roberts: “That is correct.”

McConnell further expounded his concocted parade of horribles by noting that Congress could choose to ban all political spending except by candidates, prohibiting a citizen from so much as printing a lawn sign or leaflet that would raise an issue that neither candidate wanted to address in their campaign.

McConnell: Now, let me ask my good friend from Kansas, since we would be making the rules here in Congress, and since we would be given the permission to make these rules since this is an amendment to the First Amendment of the Constitution of the United States for the first time in history, I ask my good friend from Kansas, might it not be a shrewd move on the part of all incumbents to say that those in support of or in opposition to a candidate cannot speak at all?

Roberts: I really had not thought of that proposal because it is so farfetched from democracy as we know it and participation in the election process as we know it.  It could happen.  It could happen.

McConnell: Maybe some people believe that the 105 th Congress or the 106 th Congress would not do much damage with the power granted by this resolution, but I ask our friends on the left: Are you confident that some Republican controlled Congress in the future with a 60-plus majority, with a Republican in the White House, will not seize the occasion to limit political activities by liberal leaning groups, labor unions, the media, and others?  Would you not like the Court to be able to stop such an effort on the grounds that it violated the First Amendment?

Given what we have seen in recent years from some Republican legislators willing to enact laws to suppress voting from populations that disagree with them in the form of restricting early voting and photo ID requirements that are specifically designed to keep legitimate voters from casting ballots, we should perhaps take McConnell’s words to heart.

Anticipating And Avoiding The Plutocratic Counter-Attack

To counter Senator McConnell’s parade of horribles, amendment proponents must articulate—ideally within the language of the amendment itself—what sorts of limits would be unacceptable and thus the Court should be able to strike down, and what sorts of limits the Court must uphold.  We could begin with some of Buckley’s core logic, namely that even if spending money on political speech deserves some protections, limits are justified if those limits serve a compelling interest.  So, just as the First Amendment does not protect yelling “fire” in a crowded theater that is not on fire, it does not protect all spending of any amount on political speech.

Buckely’s shortcoming was that it identified a narrow definition of political corruption as the only compelling interest it recognized in order to justify limits on money in politics.  So, the Court reasoned that contributions to candidates could be limited, because they could have the effect of unduly influencing the candidate’s judgment much as a bribe would. Buckley said the appearance or occurrence of corruption was an anti-corruption basis to cap campaign contributions.