Larry Tribe Offers Constitutional Amendment to Curb Big Money in Politics
Laurence Tribe, one of the nation's pre-eminent liberal legal scholars, has jumped into the melee over amending the U.S. Constitution to curb the big money excesses in political campaigns. In an opinion piece published on Slate.com, Tribe offers legal language and an explanation on why reversing the U.S. Supreme Court's Citizens United ruling is not enough, as the problem started with a 1976 Court ruling, Buckley, that removed all limits on campaign expenditures.
Tribe says the problem to be addressed is not who is spending money--whether a person, union, corporation, or anything else--but the amounts that are spent. He also said that there needs to be a public financing system where non-wealthy candidates can run for office and compete with better-heeled campaigns. Noticeably absent from his prescription is any mention of curbing so-called corporate personhood rights, which involve more than political speech issues.
"It is for this reason that I call not simply for narrowing Citizens United, but for drawing upon the passionate discontent triggered by that decision to rethink entirely the rules for campaign finance regulation within our constitutional order. This is a particularly worthy enterprise given that the composition of the court prefigures little chance of a swift change in direction, whether or not the court decides to revisit Citizen United in the pending challenge to Montana’s carefully crafted limits on corporate campaign expenditures. I propose an ambitious amendment along the following lines:
Nothing in this Constitution shall be construed to forbid Congress or the states from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures. Nor shall this Constitution prevent Congress or the states from enacting systems of public campaign financing, including those designed to restrict the influence of private wealth by offsetting campaign spending or independent expenditures with increased public funding.
"My proposed text first lays to rest the fiction, perpetuated for decades in the wake of Buckley, that a just and sensible financing regime can treat contributions and expenditures differently. Expenditures to support or oppose political candidates, however nominally independent—and lately, the purported independence of super PACs has become a national joke—have in practice afforded wealthy people and corporations grossly disproportionate access to holders of public office. To the ordinary voter, this is deeply alienating. And it is anathema to the foundational principle of “one person, one vote,” a doctrine devised to root out unconscionable disparities in voter access to fair legislative representation. As Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit recently argued, a fundamental corollary of that precept is the right to have one’s speech reflect one’s passion, not the size of one’s bank account."
The rest of the article is one that proponents of a broader constitutional remedy should carefully read. On July 17, a Senate Judiciary Committee subcommittee will hold hearings on the various constitutional amendment proposals to reverse Citizens United. Some of those proposals take the same route as Tribe, but lack specificity in their wording compared to his language. Others seek to restrict political speech rights for certain classes of speakers--notably corporations--while creating exemptions for non-profits and labor unions.
The elegance of Tribe's proposal is he does not discriminate between anyone who chooses to spend money to send a political message. Instead, he goes back to the foundational Supreme Court ruling that created the modern campaign finance era--that campaign contributions could be regulated but spending by individuals could not--and says, 'Stop looking at who is spending money to speak, just allow caps to be put on that spending.' He also notes the importance of creating an entry point for non-wealthy candidates, through public financing--which the current Supreme Court has eviscerated.
Having an esteemed liberal scholar like Tribe join the amendment movement discussion is a very positive development. It shows the movement is growing and being taken more seriously.