The Democrats' Response to Citizens United: Not Even Close to Good Enough

The Democratic Leadership in Congress announced its response to the Supreme Court's decision in Citizens United last week. Their plan builds upon "talking points" released by the President shortly after his State of the Union, describing his strategy for "cracking down on special interests" in light of the new threat created by the Court. "For too long," the White House wrote, "hardworking folks doing everything they can do to stay afloat have not been heard over the powerful voices of the special interests and their lobbyists in Washington." The Leadership and the President want to do something about this.

Some numbers will put this issue in perspective. Candidates for Congress raised $1.2 billion in the 2008 campaign cycle. 10% of that came from contributions of $200 or less. In 2009, the Center for Responsive Politics reports, the total spent on lobbying in Washington climbed to the highest level in American history: $3.47 billion in total were spent wooing Congress, with just over $1 billion by the health and financial services sector alone. 1.3% of that total came from organized labor. And having now been liberated by the Supreme Court to spend corporate funds to promote or oppose any political candidate, many fear the skew in these numbers will only increase. If the top 400 American corporations in 2008 spent just 1% of their profits in political campaigns, that would be $6 billions -- 5x the total amount spent in the 2008 cycle, almost 50x the amount contributed in $200 contributions or less.

So against this background of profound distortion in the political speech market, what have the Democrats proposed? A handful of puny measures, none which will come close to addressing this growing corruption of democracy in America -- a democracy less and less dependent, as the Federalist Papers promised, "upon the People," and more and more dependent upon the campaign funders.

The Democratic Leadership's response is a mix of dubious effectiveness and obvious constitutional doubt. Two of the five proposals require more disclosure by corporations of campaign spending; two purport to ban speech from disfavored groups (foreigners, and government contractors); and one aims to regulate the price of television ads for political speech.

But the Supreme Court has already signaled the uncertain power of Congress to control prices in this (in their view at least, increasingly competitive) speech market. And it is unlikely the Court will look favorably at a broad ban on government contractors speaking, especially when that ban is a response to its own ruling. And finally it is completely unclear how foreigners get regulated under the Court's reasoning in Citizens United: the whole point of that Court's rule was that the First Amendment didn't care about who the target of speech regulation was; whether person or not, the government was not allowed to "abridge the freedom of speech." Why that rule would be different when the entity silenced is French rather than corporate is completely obscure.

The White House response is not much better. It first points hopefully in the direction of Congress to "fix the damage done by Citizens United." But that hope, as I've just suggested, is disappointment. It then vaguely proposes to "limit contributions and bundling by lobbyists." But the "talking points" don't begin to explain why the Court will allow lobbyist speech to be regulated so differently from the speech of the rest of us; nor how banning the act of collecting other people's checks to give to Members of Congress will withstand a Supreme Court increasingly blind to anything but the crudest forms of corruption. Finally, the administration sprinkles more disclosure into the mix, promising tough new rules for lobbyists (as if an even clearer report from the brilliant Center for Responsive Politics would magically make Congress more responsive), and for earmarks (as if a URL were corruption's kryptonite). But transparency has increased radically over the past decade. Has responsibility and trust in government?