The Trojan Horse of Campaign Finance Reform

Supporters admit proposed constitutional amendment a means to advance Dem agenda in Congress

Harry Reid, Bernie Sanders
Harry Reid, Bernie Sanders / AP
September 9, 2014

Senate Democrats at a press conference on Monday unveiling a constitutional amendment designed to alter First Amendment freedoms argued that their effort is both nonpartisan and absolutely essential to advance the agenda of the Democratic Party.

"We are here today to overturn Citizens United," said Sen. Tom Udall (D., N.M.), the amendment’s author.

However, the language of the amendment does not specifically address Citizens United, and would not require Congress to address the issues raised in the case.

Rather, legislators would be given free rein to enact restrictions on political speech as they see fit. Given efforts by Reid and others to demonize Republican donors, conservatives voiced concerns about the consequences of campaign finance regulators uninhibited by any constitutional limitations.

Speakers claimed that even a majority of Republican voters support their proposal. However, they also stressed that campaign finance reform, and Udall’s amendment specifically, is a prerequisite for the advancement of key Democratic policy priorities, including a minimum wage hike, stringent environmental regulations, and income redistribution.

"If people think this is some kind of esoteric issue, not related to jobs and the economy and wages and women’s rights and income and wealth inequality and healthcare and global warming, you are deadly wrong," said Sen. Bernie Sanders (I., Vt.), one of the amendment’s cosponsors.

Sanders and others at the event billed the measure as an attempt to roll back the 2010 Supreme Court decision in Citizens United v. FEC, which removed limits on electioneering and express advocacy communications. However, the constitutional amendment’s language is far more sweeping, leading some to suggest that the ruling is being used as a way to rally support for far stricter regulations on political speech.

Merely rolling back Citizens United would not affect many of the groups frequently demonized by Democratic campaign finance reformers. Americans for Prosperity, for example, has engaged this cycle almost exclusively in issue ads, not electioneering communications or express advocacy.

Such groups were permitted to do the same even prior to the Citizens United ruling, explained campaign finance attorney Jason Torchinsky.

"What non-PAC groups have done with issue ads outside the 30/60 day windows this cycle weren’t impacted by Citizens United," Torchinsky said in an email. "Non-PAC groups were airing issue ads before [Citizens United] was decided, and if it were repealed or reversed groups would continue to do issue ads and speak out about matters of public policy."

The language of the amendment would empower Congress to "regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections."

If enacted, the amendment would allow Congress to regulate any expenditure—even those made by individual voters—aimed at convincing others to vote a certain way. Because in-kind spending is considered an expenditure under federal law, any activity by any person designed to "influence elections" could fall under Congress’ purview.

Opponents of the constitutional amendment say that amounts to nothing short of the de facto repeal of the First Amendment.

"This would revoke the individual right to free speech and give government the ability to limit any and all speech based on the subjective ‘reasonableness’ of the government of the day," said Dan Backer, a conservative campaign finance attorney.

"It is abhorrent," declared Backer, who successfully argued for the elimination of aggregate campaign contribution limits in April in the high-profile Supreme Court case McCutcheon v. FEC.

The measure is not expected to make it through the extremely difficult constitutional amendment process. However, it dovetails with the Democratic Party’s strategy for the midterm elections, which has focused on the supposed influence of conservative political donors on the agenda of the Republican Party and the American political system more generally.

Frequent salvos from top Senate Democrats, most notably Senate Majority Leader Harry Reid (D., Nev.), have singled out libertarian philanthropists Charles and David Koch by name as particularly destructive to the democratic process.

The Kochs were featured prominently at Monday’s press conference. Sanders accused them of attempting to buy elections in order to install politicians favorable to their financial interests.

Reid said the brothers are attempting to "fix every election in America to their liking."

Republicans blasted the effort on Monday. Senate Minority Leader Mitch McConnell (R., Ky.) accused the measure’s supporters of trying "to shut down the voices of their critics at a moment when they fear the loss of their fragile Senate majority."

Democrats dominate the world of Super PACs, the most prolific post-Citizens United independent-expenditure-only groups.

Super PACs such as Senate Majority, which has deep ties to Reid and is the biggest independent spender in the 2014 cycle by an $8 million margin, are free to accept unlimited contributions. Democrats have taken full advantage of that fact: The top three donors to Super PACs this cycle are financial tycoon Tom Steyer, gun control activist and former New York City Mayor Michael Bloomberg, and Chicago newspaper magnate Fred Eychaner.

Together, those three have poured nearly $35 million into outside groups since last year, roughly the same amount that the 21 largest Republican-leaning donors have given to their counterparts in the same time.

Republicans were critical of the campaign finance reform effort, dubbing it nakedly partisan and hypocritical.

"The hypocrisy is stunning," Sen. Ted Cruz (R., Texas) told the Washington Post on Friday. "Senate Democrats have long been funded by a group of billionaires bent on maintaining their power, yet they pretend to be outraged."

Some Senate Republicans pointed to the Democracy Alliance, a shadowy network of left-wing financiers, as emblematic of Democrats’ reliance on high dollar donors and "dark money" organizations that, by nature of their tax statuses, do not have to disclose their donors.

Republicans released a graphic on Monday showing the sprawling reach of the Democracy Alliance network. It includes 21 "core" organizations and another 161 in its "aligned network."

A number of DA-backed groups have also pushed campaign finance reform efforts, a fact that Alliance president Gara LaMarche has called "slightly ironic, but … not hypocritical."

Democracy Alliance donors dominate the list of the cycle’s most prolific. At least 19 donors with ties to the group have given more than $41 million to outside spending groups during the 2014 cycle.

It is difficult to know whether that is the extent of DA donors’ involvement because the Alliance refuses to disclose any information about the individuals and groups it associates with as well as the eventual recipients of the hundreds of millions of dollars it has poured into the political process.

LaMarche attempted to downplay the Alliance’s role in that financing by noting that it serves only as a pass-through, connecting high-dollar donors with major liberal groups, including Super PACs and 501(c)(4)s. However, the Alliance also stresses "collaboration" between those groups, which it facilitates through an annual meeting and other events.

Despite that collaboration, the fact that the Alliance never touches the money that it steers to major left-wing organizations means that it has to disclose nothing about its most impactful operations.

Even if it were a de facto umbrella organization, its hands-off approach would free it from any federal campaign finance restrictions, including those that the constitutional amendment would empower