move to defend: the case against the constitutional amendments seeking to overturn citizens united,...

7/30/2019 Move to Defend: The Case against the Constitutional Amendments Seeking to Overturn Citizens United, Policy An

1/20

Executive Summary

Three years ago the U.S. Supreme Court de-cided the case of Citizens United v. Federal Elec-tion Commission. It found that Congress lackedthe power to prohibit independent spendingon electoral speech by corporations. A laterlower-court decision, SpeechNow v. Federal Elec-tion Commission, applied Citizens United to suchspending and related fundraising by individu-als. Concerns about the putative political and

electoral consequences of the Citizens Unitedde-

cision have fostered several proposals to amendthe Constitution. Most simply propose givingCongress unchecked new power over spendingon political speech, power that will be certainlyabused. The old and new public purposes citedfor restricting political spending and speech(preventing corruption, restoring equality, andothers) are not persuasive in general and donot justify the breadth of power granted under

these amendments.

Move to DefendThe Case against the Constitutional Amendments

Seeking to Overturn Citizens United

by John Samples

No. 724 April 23, 2013

John Samples is director of the Center for Representative Government at the Cato Institute and the author ofThe Fallacy of Campaign Finance Reform (University of Chicago Press, 2006), and The Struggle to

Limit Government (Cato Institute, 2010).


2/20

2

The fact that twoof the proposed

amendmentsfound it

necessaryto explicitly

exempt the pressfrom the newcongressional

powers overelectoral

spendingindicates the

radical characterof the proposed

changes.

Introduction

In January 2010, the United States Su-preme Court handed down its decisionin Citizens United v. Federal Election Commis-

sion.

1

The Court found that prohibiting in-dependent electoral spending by corpora-tions violated the First Amendment. A laterlower-court decision, SpeechNow v. FederalElection Commission, liberalized fundraisingand spending by individuals.2Citizens Unitedfostered controversy and considerable criti-cism. Some critics called for a constitutionalamendment to overturn the decision. In2012, President Obama joined that call.3

By the end of February 2013, membersof the 113th Congress had introduced eight

proposed amendments responding to CitizensUnited.4 Five of these eight bills give Congressand the states full power to regulate and re-strict both contributions and electoral spend-ing.5 The other three implicitly grant suchpowers. Four of the bills focus their attentionon contributions and spending by corpora-tions and other organizations.6 The otherfour grant a general power to regulate andrestrict contributions and spending. Three ofthe proposed amendments in the 113th Con-gress explicitly exempt freedom of the press

from the powers granted in the bill.7This essay will focus on the amendments

offered early in the 113th Congress. Howev-er, a look back to amendments introduced inthe 112th Congress makes sense; similar billsmay appear later in the current Congress. Inthe 112th Congress, members introduced16 constitutional amendments related toCitizens United, 3 in Senate and 13 in theHouse.8 Eleven of the amendments wouldhave granted Congress the power to regulateor limit spending on elections; 10 of those

would have given the states the same power.Nine of the amendments in the 112th Con-gress would have given Congress or the statesthe power to regulate or limit contributionsin federal elections. Four of the amendmentswould have explicitly outlawed donations orspending by corporations. Two amendmentswould have prohibited all private spending

on federal elections in favor of full publicfunding. Eight of the amendments wouldhave explicitly protected the freedom of thepress from their strictures. Another fourstated that only natural persons and not cor-

porations would have had rights under theU.S. Constitution.9

Many of the proposed amendments in the113th Congress would not change existinglaw. Under the national Constitution, Con-gress and the states have had the power toregulate campaign contributions for severaldecades.10 They also possess the power to pro-hibit contributions by corporations.11 Whilethese parts of the proposals do not changethe status quo, they would preclude possiblefuture court decisions voiding contribution

limits or prohibitions related to corporations.Other amendments propose significant

changes in the current law. As noted earlierthree of amendments explicitly include au-thority to regulate or prohibit corporate in-dependent expenditures, thereby overturningCitizens United. But four of the amendments gomuch further, as will be later explained, over-turning Buckleys invalidation of expenditurelimits more generally. The fact that two of theproposed amendments found it necessary toexplicitly exempt the press from the new con-

gressional powers over electoral spending in-dicates the radical character of the proposedchanges.

Why should Congress gain such powerover spending? Perhaps the spending andspeech at stake should not be protected bythe Constitution. If they are protected, per-haps Congress should have the power to pur-sue other values, even at a cost to the freedomof speech. I examine each possibility in turn.

Unprotected Speech?

We might begin by recalling a few reasonswhy free speech matters. First, free speechis needed for republican government. It in-forms voters about the conduct of electedofficials, thereby helping voters to hold of-ficials responsible at election time. Scholars


3/20

3

Speakingout requiresspending moneyand restrictingor prohibitingsuch spendingwill restrain orprohibit therelated speech.

have found that more spending on speechleads to better-informed voters; less informedvoters benefit more from more spending andspeech than relatively better-informed vot-ers. Informing voters fosters electoral com-

petition through criticizing incumbents andcreating name recognition for challengers.12These arguments suggest why legal protec-tions for free speech are needed. Officials inpower have every reason to fear speech. It fos-ters change, not least in elections. Elected of-ficials have strong reasons to find acceptableways to suppress free speech.

Many doubt that limiting spending onelections implicates the First Amendment.Some argue that money is not speech.13Congress has long assumed broad powers to

regulate the use of property in the economy.These amendments would extend this broadpower from economic activities to the fund-ing of political speech, thereby extendingthe government activism of the New Deal topolitical activities.14 Yet the actual New DealCourt indicated that speech had more con-stitutional protection than the use of prop-erty.15 The Supreme Court distinguishedprotections for speech from power overproperty in Buckley v. Valeo, its most impor-tant campaign finance decision:

A restriction on the amount of moneya person or group can spend on polit-ical communication during a cam-paign necessarily reduces the quantityof expression by restricting the num-ber of issues discussed, the depth oftheir exploration, and the size of theaudience reached. This is because vir-tually every means of communicatingideas in todays mass society requiresthe expenditure of money.16

In other words, speaking out requires spend-ing money, and restricting or prohibitingsuch spending will restrain or prohibit therelated speech. Similarly, printing pressesmay not be actual speech, but banningprinting presses would place a severe bur-den on the ability of people to disseminate

their speech. No Supreme Court justice hasdenied a connection between money andspeech.17 Even Justice John Paul Stevens, theauthor of the dissent in Citizens United, hasacknowledged that spending money impli-

cates the First Amendment.

18

But does freedom of speech apply to cor-porations? We are accustomed to thinkingabout individual rights. Perhaps freedom ofspeech should apply only to natural per-sons. Two amendments propose to changethat by limiting the freedom of speech tonatural persons. 19

The shareholders and owners of a busi-ness are natural persons (not to mentionthe members of an interest group taking acorporate form or a labor union). The lead-

ers of a corporation are also natural personswho fund speech on behalf of shareholdersor members who are also natural persons.The corporate form they take, however, is alegal construct, not a natural person. Cor-porations share this artificiality with otherpolitically engaged organizations: politicalaction committees, political parties, massmobilization organizations, independentexpenditure committees (so-called Super-PACS), and so on. Under these proposals,individuals, wealthy or not, would have full

First Amendment protections. Individualsorganized into groups would not. Theseamendments would expose what most peo-ple take to be normal political activity togovernment control.

Courts have recognized corporationshave some aspect of legal personhood sinceat least 1886.20 Over 30 years ago, the Su-preme Court decided that corporate speechmerited First Amendment protection. TheCourt focused on the speech at issue, not thecorporate identity of the speaker.21 The text

of the Constitution supports this concernfor speech rather than the speaker. The FirstAmendment states Congress shall make nolawabridging the freedom of speech. Itdoes not mention people, natural or other-wise. The amendments would both contra-vene the text of one part of the Constitutionand longstanding Supreme Court decisions.


4/20

4

Ads criticalof the Obama

administrationseconomic record

or Mitt Romneyswork at Bain

Capital havelittle in common

with childpornography or

incitements toriot.

Perhaps we should distinguish politicalentities promoting one version or another ofthe public interest from economic entitiesthat seek private profits or interests. Someadvocates say freedom of speech should ap-

ply only to the former.

22

The text of the FirstAmendment makes no such distinction. Thepursuit of profits may well serve the publicinterest. Managers of business corporationshave an obligation to maximize shareholdervalue. Fulfilling that obligation has longbeen deemed in the public interest. Theymight have good reason to support somecandidates for office to meet their obliga-tion. In any case, businesses need not engagepolitics only in a self-interested way. Manag-ers might believe that candidates and poli-

cies that favor their business also promotenational prosperity. Perhaps they are wrong,but the decision that they are wrong belongsto voters, not Congress.

Not all speech is protected by the FirstAmendment. Slander, obscenity, direct in-citements to violence, and other kinds ofspeech may be prohibited by Congress toprotect the public.23 But ads critical of theObama administrations economic recordor Mitt Romneys work at Bain Capital havelittle in common with child pornography

or incitements to riot.24 The spending atissue in these amendments supports politi-cal speech similar to speech long protectedby the courts. The federal government doeshave the power to prevent violence throughcriminalizing incitement. It does not, andshould not, have the power to prevent peoplefrom adopting incorrect political views.

Compelling Government

InterestsAmericans appear to value freedom of

speech. Perhaps they value it too much. Aproponent of these amendments might ar-gue that republics pursue many differentends reflecting many values. Freedom ofspeech is one value, sanctioned by the Con-stitution. These amendments would allow

Congress to pursue other purposes and val-ues at a cost to freedom of speech.25 Free-dom of speech would matter less, and othervalues would matter more.

The congressional resolutions themselves

are largely silent as to their purposes.

26

We dohave a source for identifying the purposes ofcampaign finance regulation. The SupremeCourt has long applied strict scrutiny analy-sis to campaign finance laws. Such analysisidentifies a compelling government interestthat justifies abridging a fundamental rightlike freedom of speech. Such interests sug-gest purposes and values that might justifythe remarkable grants of power over speechin these proposed amendments. Some val-ues or purposes have been rejected by the

Court as legitimate reasons for regulatingspeech. These rejected valuesthe idea ofequality above allmay underpin a constitu-tional amendment but not an ordinary lawAfter all, We, the People, the authors ofthe Constitution, stand above the SupremeCourt, the interpreters of that text. We shallconsider both the traditional purposes forregulation and those rejected by the Court.

Corruption

The Supreme Court has said the onlygovernment interests compelling enough toallow limits on political spending are pre-venting corruption (or the appearance ofcorruption) of politics. What is corruption?The courts and commentators have offeredmore than one answer to this question.

Appearance of CorruptionThe courts have said that preventing an

appearance of corruption caused by donations

may justify restricting campaign contribu-tions. Such appearances are said to cause citi-zens to lose confidence in government; thegovernment has a legitimate interest appar-ently in fostering confidence in itself.27 Theproposed amendments might be defended asa way to counter appearances of corruptionand thus to bolster confidence in Congress.


5/20

5

A governmentthat restrictsspeech based onthe appearance

of corruptionmay have publicconfidence, but cannot deserve i

Scholarly research has shown that trendsin public perception of corruption mayhave little to do with the campaign financesystem.28 The number of Americans whothought that the government was corrupt

went down even when large contributions tothe political parties increased during the late1990s.29 Thus, if Congress could limit thepurported cause of distrust (spending), wehave no reason to think the presumed effectof higher confidence would follow.

The appearance of corruption standardhas deeper problems. Imagine a set contain-ing all spending on electoral speech. Furtherimagine that some spending corrupts gov-ernment while much of it does not. Imaginealso, plausibly, that the public believes much

more spending corrupts than is actually thecase; the publics beliefs are overly inclusive.This set of mistaken public beliefs about cor-ruption will be both a rationale for limitingfree speech and an exercise of free speech.

This subset of mistaken beliefs is impor-tant. Congress has the power to act againstactual corruption; the publics accurate be-liefs may be acted on by Congress under thepreventing corruption rationale. Giventhat, the subset of spending believed to becorrupt but not actually corrupt consti-

tutes the actual appearance of corruptionrationale for regulating campaign finance.Should Congress have the power to restrictFirst Amendment rights based on false pub-lic beliefs about the exercise of those rights?

Some might say that preserving publicconfidence in government justifies restrict-ing rights even if those limits are foundedon false public beliefs. Here we might distin-guish between a government that has publicconfidence and one that deserves it. A govern-ment deserves public confidence if it pursues

public purposes through effective policies. Apolicy is effective if it is based on a true be-lief that the means chosen will attain a legiti-mate public purpose. A government does notdeserve public confidence if it pursues publicpurposes through policies based on false be-liefs about their effects. Such a governmentmight retain public confidence, however, if

the public falsely believed the policies wouldattain the relevant ends. A government thatrestricts speech based on the appearance ofcorruption may thereby have public confi-dence, but it cannot deserve it.

Quid Pro Quo CorruptionIn Buckley, the Court said that corrup-

tion arises when contributions are given tosecure a political quid pro quo from currentand potential office holders, the integrityof our system of representative democracyis undermined.30 Campaign contributionsshow support for a candidate and his posi-tions; the donor hopes to help a candidatewin an election and carry out his promises.But they can also degenerate into a kind of

bribery: a candidate can promise a favor inreturn for a contribution. The contributiondetermines the promised actions of the can-didate rather than the promised positionsand actions attracting the contributions.By limiting contributions, the Court con-cluded, Congress could make such quid proquos less likely.31 Preventing this type of cor-ruption also justifies a congressional ban oncontributions by corporations. To this day,even after Citizens United, corporations can-not directly contribute to candidates.

Quid pro quo corruption depends on aperson giving money to a candidate and re-ceiving something in return. What if a per-son or group doesnt give money directlyto the candidate and just spends money onspeech supporting or opposing a candidate?Such independent spending leads to speech,not a corrupt exchange of a donation for a fa-vor.32 Many of these proposed amendmentswould give Congress power to regulate orprohibit independent spending on speech.Some argue that independent spending al-

lows for a type of bribery. Candidates knowabout independent spending, the argumentgoes, and they can reward those who fundsuch speech.33 Independent spending is notreally independent; it is just another kind ofcontribution that obscures the quid pro quotransaction. To prevent such quid pro quos,Congress should have the power to limit or


6/20

6

The peoplehave an interest

in robust,unencumbered

political speech;members of

Congress do not.

ban such spending just as it has always hadthe power to regulate contributions.

How do we know public officials are pro-viding favors in exchange for independentspending? Candidates for office complain

sometimes about their lack of control overindependent groups. 34 Absent such control,independent groups cannot deliver benefitsto donors reliably. By law a leader of such agroup cannot be a representative of a candi-date. Moreover, it is not enough to say that aperson gave money to an independent groupand later benefited from an act of Congress.Candidates take positions, and donors seekto support the candidate and his positions. Inother words, the money may follow (not de-termine) the positions of the candidate.35 In

that case, independent spending seems likenormal democratic politics. If Citizens Unitedwere overturned by an amendment, whowould decide whether independent spendingfosters quid pro quos and should restrictedor prohibited? Congress would make thatjudgment.36 The courts would be deferentialtoward such determinations of corruption.37

Heres the problem with such deference:Congress cannot fairly judge this matter.Being elected officials, they have a stake inthe game. Members care most of all about

winning re-election. They also care abouttheir party attaining and holding a major-ity. Independent groups can threaten thosevital interests. Freed of contribution limits,independent groups can raise funds quicklyto criticize incumbents and perhaps bringabout their defeat, even in a primary.38 Con-gress will always have a working, bipartisanmajority in favor of protecting the membersjobs, and that majority will equate uncon-trolled, independent spending with a higherprobability of losing a bid for re-election.

Members thus face a conflict of interest:they can ban independent spending and in-crease the likelihood of re-electing incum-bents or they can decide such spending doesnot corrupt and face stiffer competition forholding on to their seats. It is too much toexpect that members of Congress (or anyonesimilarly placed) would consistently vote

against their primary self-interest and de-clare independent spending innocent of allcharges. In short, the people have an interestin robust, unencumbered political speech;members of Congress do not. For this rea-

son, among others, the Constitution saysCongress shall make no law . . . abridgingthe freedom of speech.

AccessMany people believe representatives re-

ward contributions with access defined asthe ability to see and to speak with govern-ment decisionmakers.39 Lobbyists believecontributions lead to access or the chanceto have your opinion heard.40 Of course thechance to be heard is not the same as sup-

port for a policy. Legislators still may votebased on their ideology or partisanshipHence, lobbyists tell scholars that moneycan buy access . . . but the real work of lob-bying is done elsewhere.41 The legislatorsjudgment is the intermediary between accessand policy.

Citizens United found that offering suchaccess to a member did not constitute quidpro quo corruption.42 The Court deemedsuch theories of favoritism unbounded andsusceptible to no limiting principle.43 Rep-

resentatives are more inclined to meet withtheir supporters, including donors, thanconstituents who are neutral or hostile.44

They are also more likely to meet with sym-pathetic groups or leaders who influencevoters. For the Court, this inequality betweenfriends and opponents would seem to bepart of politics.45 For the Court, such normalpolitics hardly justified prohibiting speech.

The access argument does not offer a rel-evant foundation for the proposed amend-ments. Lobbyists seek access in part through

contributions given through the traditionallegal framework of political action commit-tees. The amendments give Congress powerover spending not covered by existing regu-lations. Such power thus could not addressthe access issue, even if we accept that sup-porters meeting with members is a problemto be solved.


7/20

7

Assume Congresagain bansindependentspending bycorporations orby individuals.Some ideas

would not beheard, andamong thosewould be ideasthat genuinelyinform voters.

Distortion TheoriesPrior to Citizens United, the Supreme Court

had recognized a different type of corrup-tion that created a state interest compellingenough to support a ban on independent

expenditures by corporations. The Court de-scribed this corruption as the corrosive anddistorting effects of immense aggregationsof wealth that are accumulated with the helpof the corporate form and that have little orno correlation to the publics support for thecorporations political ideas. Such spendingwould not reflect actual public support forthe political ideas espoused by corporationsand thus would unfairly influence elec-tions.46 This distortion theory of corrup-tion comprises two ideas: public support and

political equality.47

I treat the former nowand return to the question of equality later.

What is wrong, according to the Court,with corporate spending and speech? It lackspublic support and thus distorts elections.This argument makes sense for voting. In ademocracy, voters elect public officials whothen make laws. Elected officials should havepublic support as indicated by voting.

Is spending on speech like voting? It is notenough to say that spending influences elec-tions. Voting determines the outcomes of elec-

tions. If spending on speech determined theoutcome of elections, it would make sense todemand that such spending have broad publicsupport. However, money does not determinethose outcomes. Congressional incumbentsdo usually raise and spend more than chal-lengers, and they also win re-election almostall the time. Having more money would thusappear to determine the outcomes of elec-tions. But appearances are misleading. Chal-lengers are often poor candidates who do notattract enough money to mount an effective

challenge because they are expected to lose. Acandidate might, for example, have little expe-rience and thus, weak name recognition in adistrict. The quality of the candidate, not themoney itself, fosters an incumbent victory,and incumbents are more often experiencedcandidates. Challengers do not need to spendas much or more than incumbents to win elec-

tions, and quality candidates are able to raisesufficient sums.48 Even if incumbents have awar chest built up from past elections, a chal-lenger can raise money and defeat a vulner-able incumbent.49 The political environment

matters also. In 2010, 52 Republican challeng-ers defeated Democratic incumbents in theHouse of Representatives even though 43 ofthose incumbents had outspent their victori-ous challengers.50 Those 43 Republican chal-lengers could not have taken office if cam-paign spending were like votes.

Assume Congress again bans independentspending by corporations or by individuals.Some ideas would not be heard, and amongthose would be ideas that genuinely informvoters. Voters would be deprived of informa-

tion they might have wanted to hear. Congresswould have decided that ideas funded by a fewpeople lack public support and should not beheard. Voters would not get the chance to de-cide whether those ideas deserved public sup-port. The U.S. Constitution reserves that deci-sion to the voters, not to Congress.

Finally, consider the question of endsand means. The powers conferred by theseamendments cover all electoral spending,not just the corporate outlays. Congresswill have the power to restrict speech about

ideas with both broad and narrow support.Can we be sure ex ante that Congress willonly regulate spending that does not reflectbroad public support? If members are con-cerned primarily with re-election, ideas thatenjoy (or potentially enjoy) broad public sup-port are relevant to that goal. If a majorityin Congress finds such popular ideas threat-ening, they might use their new powers torestrict the propagation of such ideas. Ideaswith narrow support, in contrast, are unlike-ly to be regulated or restricted. They pose a

lesser threat to the re-election of those whomake campaign finance policy. Paradoxicallythe proposed amendments are likely to makeCongress less responsive to the popular will.

Recent commentators have explicatedtwo revised versions of the distortion ratio-nale for giving Congress control over spend-ing on speech. I now consider each in turn.


8/20

8

The Foreign GiftsClause in the

Constitution isa weaker version

of the one inthe Articles, a

strange move formen said to beobsessed with

corruption.

The Anti-Corruption Principle. ZephyrTeachout believes the American Framers sawpreventing corruption as a central part of theUnited States Constitution.51 She argues thatthe Constitution contains within it an anti-

corruption principle, much like the separa-tion-of-powers principle, or Federalism.52According to Teachout, this principle definescorruption as the self serving use of publicpower for private ends.53 Like other struc-tural principles, this anti-corruption princi-ple should be given independent weight injudicial or other deliberations about apply-ing the Constitution.54 Teachouts principlemight justify the amendments under consid-eration. Congress could be given the powerto restrict spending and speech to vindicate

the anti-corruption principle.We, the People might wish to amend

the Constitution to vindicate founding prin-ciples and renew republicanism. But twoquestions need affirmative answers beforethe proposed amendments can build onTeachouts foundation: Is the anti-corrup-tion principle part of the Constitution? Arethe amendments consistent with the anti-corruption principle?

Teachout practices a curious sort of origi-nalism.55 She does not set out the original

public meaning of discrete clauses of theConstitution.56 She seeks instead to estab-lish the Framers concern about corruption,a concern said to underlie various parts ofthe Constitution. Above all, she focuses onthe Ineligibility Clause,57 the EmolumentsClause,58 and the Foreign Gifts Clause,59 fromwhich, she says, her anti-corruption principleemanates. Justice William O. Douglas fol-lowed a similar method of derivation in thatbane of originalism, Griswold v. Connecticut.60

Teachout herself, despite her copious cita-

tions to the Framers, invokes the anti-corrup-tion principle through a historical relativismthat recalls the Living Constitution idea. Shewrites: the anti-corruption principle em-bodies a broad principle that can mean dif-ferent things and apply to different acts overtime.61 This statement calls into questionher reliance on the authority of the Framers.

If the meaning of principles can change, whyshould contemporary pluralists not agreewith Progressives that the old JeffersonianConstitution (and its putative anti-corrup-tion principle) are out of date and should give

way to the more modest and functional quidpro quo standard enunciated in Buckley?After all, the latter might be more in accordwith contemporary pluralism.

Teachout claims the Framers were ob-sessed with corruption. She cites the ForeignGifts Clause, which states No Title of No-bility shall be granted by the United States:And no Person holding any Office of Profitor Trust under them, shall, without the Con-sent of the Congress, accept of any present,Emolument, Office, or Title, of any kind

whatever, from any King, Prince, or foreignState.62 However, the Foreign Gifts Clausein the Constitution is a weaker version of theone in the Articles, a strange move for mensaid to be obsessed with corruption.63 In par-ticular, the weaker current version does notreach state officials and state elections.64 Thelanguage of the Clause also omits many im-portant federal offices, omissions that againraise doubts about the obsession claim.65

Could the anti-corruption principle jus-tify the powers over speech that would be

granted by these proposed amendments?The Foreign Gifts Clause cited above speaksof accepting gifts from foreigners. Even ifwe assume, as Teachout proposes, that cor-porations are foreigners or foreign govern-ments for constitutional purposes,66 theanti-corruption principle could not reachindependent spending on elections, the kindof spending vindicated in Citizens United.67 Insuch activities, officials accept nothing fromforeigners at home or abroad; indeed, theyaccept nothing from Americans in a legal

sense. Moreover, the Foreign Gifts Clause re-fers to any Office of Profit or Trust under[the United States]. The weight of the evi-dence indicates this phrase does not includefederal elected positions.68 Even if Teachoutwere correct about the founding era, herprinciple could not provide an intellectualfoundation for these amendments.


9/20

9

To think thepowers grantedby the proposedamendmentswould be usedpredominantlyfor the publicgood assumestoo much about

human natureand politics.

Teachouts principle should prove irrel-evant to the amendments in another way.She seeks to give weight to an anti-corruptionprinciple that could then be balancedagainst other principles like the freedom of

speech. Most of the proposed amendmentsdo no balancing. They simply give powerto Congress to regulate or prohibit spend-ing on speech. The balancing, if any, will bedone by Congress. The speech that prohib-ited spending would have supported willnot be heard. The First Amendment wouldnot be a constraint on that power, especiallysince the proposed amendments are meantto overrule Buckley and Citizens United. Thepoint of the proposed amendments is to ex-clude some political activities (spending on

speech) from First Amendment protections.The amendments confer power on Con-gress, not an interest to be weighed by thejudiciary. The amendments provide answersto constitutional questions, not a means forcourts to reconsider those questions.

In fact, the amendments might well fos-ter violations of Teachouts anti-corruptionprinciple. Giving a majority of membersof Congress the power to control electoralspending would tempt Congress to con-strain and censor their critics. Such actions

would be in service to private ends: the re-election of members of Congress. Of course,electoral success might be in the public in-terest if elections were fair and competitive;such elections would reveal the desires ofvoters relative to candidates. But the pro-posed amendments would make it possiblefor members of Congress to control spend-ing by their opponents. A rigged electiondoes not lead to outcomes that serve thepublic. In this case, the members of Con-gress would be acting against the interests

and desires of their constituents.The threat of incumbent self-dealing may

be found elsewhere in Teachouts argument.She posits that a devotion to the commongood is required to enter the political fray.Those who seek private ends in politics areto be excluded as potential corrupters of thepolity. Defining the common good prior to

politics thus defines who may speak in poli-tics. If that is the rule, those who seek privateends will speak the language of the commongood. Indeed, they may believe sincerely andwith good reason that the pursuit of self-

interest serves the common good: ambitionmay counteract ambition beyond elected of-ficials. Someone will have to decide who istruly motivated by the common good andwho is just faking it.69 Majorities in Con-gress, along with the president, will be thatsomeone. The temptation to harass onesopponents would be powerful. The anti-corruption principle is likely to become theincumbent protection principle.70

Let us say, however, that a majority wish-es to regulate campaign finance to to de-

fund (and thereby silence) a minority. Letus assume, plausibly, that the voters whocompose such a majority are acting onself-interest. Perhaps they wish to take theproperty of the defunded minority or theysimply take pleasure in doing harm in someway to the defunded minority. By using thenew power granted by the amendments inthis way a majority would be seeking to usepublic power for private ends. If a majorityof Congress acted on that majoritarian im-pulse, Congress itself would be corrupt by

Teachouts standard. In this way, the pro-posed amendments would provide Congresswith new public powers to pursue privateends. The amendments would, at the mar-gin, enable corruption.

It is possible that these new powers overspending would be used predominantly forpublic ends. But it seems unlikely. Incumbentswould have to forgo using a powerful weaponagainst challengers. Majorities would have totolerate resistance from propertied minorities.To think the powers granted by the proposed

amendments would be used predominantlyfor the public good assumes too much abouthuman nature and politics. To say more rea-sonably that the powers over spending wouldempower private interests half the time andthat we should tolerate corruption to fightcorruption would hardly recommend theseamendments to the American people.


10/20

10

The peoplealone might

differ withLawrence

Lessigs politicalhopes, but the

foundationsof his theory

of corruptionneed not be

just a rhetoricalrestatement of his

own substantivecommitments.

Teachout ultimately misunderstandsAmerican government. It embraces indi-vidual rights and limited government; theConstitution establishes procedures for po-litical struggle. American government is not

defined by a devotion to a common good.

71

Teachout makes the common good centralto her argument about corruption and goodgovernment. She writes thus from outside,not within, the modern American politicaltradition. She asks not that we reform gov-ernment to revive founding principles butrather that public officials impose a differentconception of government on the nation.

Dependence. Law professor Lawrence Les-sig has articulated a distortion theory he callsdependence corruption. What would an un-

distorted government look like? Lessig doesnot rely on a theory of the common good toset the baseline for measuring corruption andrecognizing integrity. He writes, What is thepublic good? . . . The answer (for us at least) isthat theres no good answer, at least not any-more.72 Instead he emphasizes the politicalprocess. Lessig postulates that the Foundersintended the United States government to bedependent on the People alone.73 He writes,Dependentmeaning answerable to, relyingupon, controlled by. Alonemeaning depen-

dent upon nothing or no one else.74Instead, as Lessig argues in some detail,

both what Congress considers and what itenacts depend in part on the funders, peo-ple who provide campaign funds to membersof Congress and receive, in turn, policies thatfavor special interests.75 This is not, howev-er, quid pro quo corruption. Washington isa gift economy: funders help out memberswho become obligated in fact, if not legally,to return the favor.76 Lawmaking is distortedbecause members and their actions are de-

pendent on the funders (and their clients)rather than the People alone.77

How do we discern what the Peoplealone want? Lessig notes that polls tell uswhat the People believe about an issue andwhat the people want [Congress] to workon.78 He argues that to the extent that Con-gress does not follow the issue concerns or

agenda of the polled public, government iscorrupt. For Lessig, the people alone speakto Gallup within a range and with a 95 per-cent certainty.

This idea has one advantage over many

views of corruption. A skeptic might doubtthat the common good of the people andZephyr Teachouts idea of the common goodof the people would ever differ much. But thepeople alone might differ with Lawrence Les-sigs political hopes. The foundations of histheory of corruption need not be just a rhe-torical restatement of his own substantivecommitments.

Invoking the authority of the Founders,however, seems strange. Contrary to Lessig,Madison did not define a faction as a spe-

cial interest.79

Madison wrote:

By a faction, I understand a numberof citizens, whether amounting to amajority or a minority of the whole,who are united and actuated by somecommon impulse of passion, or ofinterest, adverse to the rights of othercitizens, or to the permanent and aggre-gate interests of the community.80

A faction is not just a special interest (or

minority); it might also be a majority act-ing against the rights of others or the largerinterests of the whole. Madison assumedthat in a republic a majority would quicklysuppress mischief by a minority by simplyoutvoting them. Mischief by a majority,however, had no obvious remedy in a repub-lic, a form of government marked by major-ity rule. Federalist 10 focuses on precludingmisrule by a majority. Madison did believethat the United States should be a republicand that in such a government the people

ruled. But he also believed that passions andinterests would sometimes lead the people togreatly harm or even destroy their republicHe did not simply identify the people witha majority. He also thought representationin a republic would be one remedy for thedangers posed by wayward majorities. Les-sig affirms majorities; they are neither a fac-


11/20

11

By changing whis heard andthereby electoraoutcomes, the

amendmentscorruptAmerican politicas properlymeasured by aFirst Amendmenbaseline.

tion nor a threat to the republic. The threatcomes from departing from the will of thepeople alone understood as a majority.

One example clarifies how far Lessig isfrom Madison. Imagine polls show that a

majority of Americans wished to redistrib-ute all wealth from its current owners to thebottom 50 percent of the income distribu-tion. If Congress did not put that issue on itsagenda and pass relevant laws, Lessig wouldbe bound to judge that Congress corrupt. Incontrast, Madison found such laws wickedand improper.81 Lessig is much more of ademocrat than Madison. His reliance on theauthority of that Founder is misplaced.

Lessigs concept of corruption also ap-pears overly broad. Madison thought rep-

resentatives would refine the views of thepeople, thereby making laws more conso-nant to the public good than if pronouncedby the people themselves, convened for thepurpose.82 For Lessig, such departures fromthe publics initial views must be judged evi-dence of dependence on someone other thanthe people and hence, corrupt. Lessig mightwant to say, with Madison, that if representa-tives ignore the peoples voice now in pursuitof their long-term interests, the deviationwould not be corrupt. But to say that re-

quires a theory of the public good that Lessigdoubts we can have now.

Lessig recommends public financing ofcampaigns to end dependence on donors.Two of the proposed amendments in the112th Congress also included public financ-ing. However, Lessigs proposal is voluntaryfor candidates, if not for taxpayers, that is,the funders.83 The two proposed public-financing amendments also prohibit privatespending on elections, thereby prohibitingsome speech. Lessigs plan doesnt forbid

anyone from running their own ads. . . . Itdoesnt stop the likes of Citizens United,Inc., from selling videos attacking anyone.84

What about the power to regulate spend-ing in general? Lessig believes Congressshould be empowered to regulate indepen-dent spending by corporations. As notedearlier, the powers granted in these amend-

ments are broader than a reclaimed powerover corporate spending. The powers in theamendments thus seem broader than Les-sigs proposal. In general, Lessig says his planis not a solution that says speak less. It is a

solution that would, if adopted, allow peopleto speak more.85 The power to control allspending on electoral speech would lead toless speech through prohibitions or limits.

Lessigs work does suggest a way of think-ing about these proposed powers. He abhorsdependence of the government on the thefunders. Government should depend onthe people alone. However, these amend-ments make people who wish to speak de-pendent on the goodwill of Congress. If Con-gress cuts off the spending needed to fund

the speech, the speech is not heard. The FirstAmendment precludes such dependence byrecognizing a legal right to be free of con-gressional coercion.

Such dependence would distort collec-tive decisions. By excluding some speech andthereby favoring other speech, governmentofficials could shape what desires and choic-es are transmitted in an election. Making thepublic sphere dependent on congressionaldecisions would thus cause public opinionto deviate away from what the people might

want in the absence of the restrictions al-lowed by these proposed amendments. Inother words, by changing what is heard andthereby electoral outcomes, the amend-ments corrupt American politics as properlymeasured by a First Amendment baseline.

Clientelism. Samuel Issacharoff, a professorof law at New York University, argues that pri-vate financing of campaigns can foster a kindof corruption he calls clientelism. Issacharoffasks whether the electoral system leads thepolitical class to offer private gain from public

action to distinct, tightly organized constitu-enticies. In return, these groups may be mo-bilized to keep compliant public officials inoffice.86 Clientelism is a distortion of politicsaway from its proper goal of providing pub-lic goods, that is, matters from which privateinitiative cannot realize gains and that in turnrequire public coordination.87


12/20

12

The amendmentsin questionwould give

Congressthe power todiscriminate

among speakersand therebyagainst rent

seekers. Congressis unlikely to useits new powers in

that way.

Issacharoffs argument differs from re-formist conceptions. Reformers generallyequate corruption with efforts by the richand powerful to enrich themselves by simpleplunder or by constraining government reg-

ulations or by precluding redistribution tothe weak and powerless. After reform, theyassume government would regulate and re-distribute more on behalf of the weak andpowerless. Issacharoff sees clientelism asexpanding government on behalf of privateinterests often beyond the limits of whatthe national economy can tolerate.88 A re-formed government that provides only pub-lic goods might be smaller than the one wehave under clientelism.

Issacharoffs reliance on a theory of public

goods to define propriety in politics appearspromising. But as Issascharoff recognizes,the theory of public goods can only take usso far.89 Consider the health care legislationpassed in 2010. Was its mandate to obtaininsurance an effort to deal with a negativeexternality and hence, a public good? Or wasthe mandate a bold move by concentratedintereststhe health insurance companiesto gain new members and revenues throughcapturing government? It might be both.Should Congress then permit the speech of

the externality crowd while prohibiting thearguments of the insurance companies? Ofcourse, concentrated interests might makethe case against negative externalities hopingto help the law pass and thereby gain new rev-enue. Would their speech then be permitted?Who would decide? It seems odd to think theFirst Amendment only permits speech thattakes a form approved by Congress.

The amendments in question would giveCongress the power to discriminate amongspeakers and thereby against rent seekers.

Congress is unlikely to use its new powersin that way. To the extent clientelism is true,members receive help toward re-electionfrom concentrated interests. They are un-likely to suppress that assistance. In con-trast, groups or movements (most recently,the Tea Party) threaten incumbents, threatssometimes realized in a wave election as in

2010. These outside groups are likely to findthat their speech potentially corrupts gov-ernment and thus should be banned or regu-lated.90 Preventing clientelism is a poor justi-fication for these proposed amendments.

SummaryPreventing corruption remains a major ra-

tionale for prohibiting or regulating spend-ing on political speech. Critics of liberalizedcampaign finance have continued to elabo-rate the idea of corruption in the aftermathofCitizens United. This section has examinedolder and newer ideas of corruption in pur-suit of empirical and logical flaws. None ofthese ideas justify the broad and risky pow-ers granted Congress in the constitutional

amendments currently before Congress.

Equality

The justices who created the distortionconcept also decried the effects of immenseaggregations of wealth on elections. TheCourt believed such wealth in corporate trea-suries and its use in elections justified prohibi-tions of corporate spending and speech. Why?The answer must be that spending on speech

should be equal in some respect. 91 The fran-chise seems to be the model here. Votes arerequired to be of equal weight (one person,one vote). Unequal spending, however, givessome people more influence than others,which is said to be anathema to democra-cy.92 Two amendments in the 113th Congresshave evoked equality as a rationale for givingCongress more power over speech.93

If private spending on elections leads to in-equality, government might simply prohibitprivate spending, thereby ending the source of

the inequality. However, elections still requirespending to mobilize and persuade voters. Inthe 113th Congress, no amendment has yetsought to ban private financing of campaignsTwo amendments in the 112th Congressdid propose such a prohibition, followed bypublicly funding elections through taxationThese amendments would certainly suppress


13/20

13

Many peoplemight besqueamishabout censoringnewspapers ortelevision toattain equality ospeech. But whyNewspapers

such as theNew York Timesare among themost powerfulparticipants innational debate

speech that might have been funded by privatesources. No doubt these amendments wouldalso lead to criminal sanctions for those whononetheless engaged in privately funded (andthus illegal) speech. If these amendments

were adopted, the funding of electoral politicswould come exclusively from the government.Of course, government officials might funddifferent points of view so as to foster a richpublic debate. Under the First Amendment,private individuals and associations currentlyhave the right to decide what and how muchspeech to utter and to fund. Transferringthose rights to government officials wouldprofoundly change American politics.

But would these amendments achieveequality? These two proposals from the

112th Congress favoring public financingwould have replaced the older private in-equalities with a new kind of difference: allcandidates and causes would be financedby the government, no candidates or causeswould be financed by non-governmentalentities. Electoral spending by governmentwould not be equal with electoral spendingby private individuals and associations.

Put aside the extreme public financingamendments. Most amendments, as notedearlier, call for a broad power to restrict elec-

toral spending. Congress could (and prob-ably would) impose a ceiling on speech byprohibiting independent spending by corpo-rations and perhaps also by individuals (as-suming an amendment were broad enough).Compared to the average contributor, spend-ing on speech would not become equal, but itwould perhaps become less unequal. Spend-ing limits, however, have other effects.

Who would actually benefit from lim-its on spending? Scholars have consistentlyfound that limits on spending favor incum-

bents.94 Limits on spending have different ef-fects on challengers and incumbents; the for-mer need to spend enough money to make ita race, and spending limits make it harder tomeet that threshold. In addition, individualsand groups that can raise and spend moneyquickly can threaten incumbent re-electionefforts. Citizens United freed up such spend-

ing. These amendments would likely distortelections to favor those already in office.Those already in power would become more,not less powerful.

Moreover, a consistent pursuit of equality

in political speech leads to disturbing results.The media influence elections. They spendmoney to frame the news, endorse candidatesand causes, and generally determine what ev-eryone is talking and thinking about as theelection draws near. They also strongly in-fluence what people think about candidatesand issues. Recent research has established astrong left-wing bias in the national media,a bias that sharply pushes public opinion to-ward the left.95

The media are also corporations. Even if

they were not corporations, they would haveunequal influence on American elections.Should their efforts to influence elections beprohibited or restricted? Should Congressregulate media spending to make sure liberalsand conservatives are treated more equally?

One might argue that the media is exercis-ing the freedom of the press and not the free-dom of speech. Imagine identical political ex-pressions, Vote for Smith, one coming froma corporation that owns a television stationand the other from a corporation that does

not own a media outlet. Should the mediasVote for Smith be protected from congres-sional attack while the non-medias Vote forSmith be subject to prohibition? If equalityis the goal, should not spending on speech bythe newspaper and the non-newspaper bothbe subject to congressional control?

Many people might be squeamish aboutcensoring newspapers or television to attainequality of speech. But why? Newspapers suchas the New York Times are among the mostpowerful participants in national debates. If

we are to have equality of speech, such power-ful speakers should also be constrained. Thesame would apply to prominent bloggers orusers of new media. Bans on corporate speech,if we are to be consistent, cannot be limitedto non-media businesses. The same would betrue if policymakers sought only to mitigaterather than end inequality of speech.


14/20

14

Wealthy peopleare more

conservativethan the average

American. Richliberals, however,

put their moneywhere their ideas

are. In the end,both sides are

heard. No one isdrowned out.

The authors of several of these amendmentsrecognize this implication; they respond bycarving out an exception for freedom of thepress to the general congressional powers tocontrol spending and speech.96 Some corpora-

tions and speakers are indeed more equal thanothers. Some are free of government controlover their speech; others are subject to whateverrestrictions and prohibitions Congress mightwish to impose. However, making one kind ofspeaker more equal creates a new inequalitybetween unregulated speakers and the regu-lated class. It also affirms the unequal influenceover elections that media corporations wouldenjoy after rival speakers are silenced. Finally,this carve-out for the press suggests that thedistinction between those who are permitted to

speak and those who are not permitted to speakcorresponds with a distinction between liberal/conservative or perhaps, in a polarized age,between Democrat/Republican. The amend-ments thus appear to write partisan or ideo-logical advantages into the Constitution. Somemay decry writing such private interests into adocument meant to benefit all citizens. In anycase, the authors of the amendments should bemore explicit about their partisan intentions socitizens can assess the proposed changes in thebasic law.

Finally, did Citizens Unitedmean that somevoices were drowned out? This complaint isoften heard and rarely specified. Recent his-tory raises doubts whether the rich and con-servative dominate the funding of elections,thereby drowning out other voices andother interests. Big Money existed prior toCitizens United, and much of it went to the self-styled party of the little guy. For example,the financier George Soros and two friendsgave $75 million to the John Kerry campaignin 2004. Large contributions to 527 organi-

zationsthe Super PACs of that erawentfour-to-one in favor of Kerry in 2004. In 2000,contributions in excess of $100,000 wentpredominately to the Democrats.97 Morerecently, a majority of individuals makingover $200,000 annually voted for PresidentObama in 2008. The left-leaning Obama alsotook half of the votes of those making over

$100,000 annually.98 In 2012, Obama didworse than in 2008 among those making over$100,000; he nonetheless received 46 percentof their votes.99 His supporters have amplefunds to make their views known to voters

Moreover, in 2012, some evidence indicatesthat the Obama campaign used fundraisingto actively involve voters in the campaign aswell as raise money; the Romney campaigndid not engage voters through fundraising.100

In the end, what matters is who votes ratherthan who gives money, and in that regardObama in 2012 seems to have done muchbetter than his opponent. In general, wealthypeople are more conservative than the averageAmerican. Rich liberals, however, put theirmoney where their ideas are. In the end, both

sides are heard. No one is drowned out.101

Conclusion

Fears about the putative political andelectoral consequences of the Citizens Unit-ed decision have fostered several proposalsto amend the Constitution. Most simplypropose giving Congress unchecked powerover political speech, power that will be cer-tainly abused. The old and new public pur-

poses cited for restricting political spendingand speech are not persuasive in general anddo not justify the breadth of power grantedunder these amendments. Americans shoulddefendnot amend awaythe freedom ofspeech recognized by the First Amendment.

Notes

I would like to thank Professor Seth BarrettTillman of the National University of Ireland,

Maynooth for many helpful comments.

1. Citizens United v. Federal Election Commission558 U.S. 50 (2010).

2. SpeechNow.org v. Federal Election CommissionUnited States Court of Appeals, DC CircuitMarch 26, 2010.

3. Neil Munro, Obama Floats Constitutional


15/20

15

Amendment Overturning Citizens United, DailyCaller, August 29, 2012.

4. Expressing the sense of Congress that the Su-preme Court misinterpreted the First Amendmentto the Constitution in the case ofBuckley v. Valeo(H. Con. Res. 6, 113th Congress, 1st Sess., January

4, 2013); proposing an amendment to the Consti-tution of the United States relating to limitationson the amounts of contributions and expendituresthat may be made in connection with campaignsfor election to public office (H.J. Res. 12, 113thCongress, 1st sess., January 4, 2013); proposingan amendment to the Constitution of the UnitedStates waiving the application of the first article ofamendment to the political speech of corporationsand other business organizations with respect tothe disbursement of funds in connection with pub-lic elections (H.J. Res. 13, 113th Congress, 1st sess.,

January 4, 2013); proposing an amendment to theConstitution of the United States relating to contri-butions and expenditures with respect to elections

(H.J. Res. 20, 113th Congress, 1st sess., January 22,2013); proposing an amendment to the Constitu-tion of the United States to clarify the authority ofCongress and the States to regulate corporations,limited liability companies or other corporate enti-ties established by the laws of any State, the Unit-ed States, or any foreign state. (H.J. Res. 21, 113thCongress, 1st Sess., January 22, 2013); proposingan amendment to the Constitution of the UnitedStates relative to authorizing regulation of contri-butions to candidates for State public office andFederal office by corporations, entities organizedand operated for profit, and labor organizations,and expenditures by such entities and labor organi-

zations, in support of or opposition to such candi-dates (S.J. Res 5, 113th Congress, 1st sess., January28, 2013); proposing an amendment to the Consti-tution of the United States to clarify the authorityof Congress and the States to regulate the expendi-ture of funds for political activity by corporations(H.J. Res. 21, 113th Congress, 1st sess., February 6,2013); proposing an amendment to the Constitu-tion of the United States providing that the rightsextended by the Constitution are the rights of natu-ral persons only (H.J. Res. 29, 113th Congress, 1stsess., February 14, 2013).

5. S.J. Res. 5; H.J. Res. 25; H.J. Res. 20; H.J. Res. 12.

6. S.J. Res. 5, H.J. Res. 21; H.J. Res. 13.

7. S.J. Res. 5; H.J. Res. 21; H.J. Res. 29.

8. The proposed amendments: A joint resolu-tion proposing an amendment to the Constitu-tion of the United States relating to contributionsand expenditures intended to affect elections,U.S. Congress, S.J. Res. 29, 112th Cong., 1st sess.,(November 1, 2011); a joint resolution proposing

an amendment to the Constitution of the UnitedStates to expressly exclude for-profit corpora-tions from the rights given to natural persons bythe Constitution of the United States, S. J. Res. 33,112th Cong., 1st sess. (December 8, 2011); a jointresolution proposing an amendment to the Con-stitution of the United States relative to authoriz-

ing regulation of contributions to candidates forState public office and Federal office by corpora-tions, entities organized and operated for profit,and labor organizations, and expenditures by suchentities and labor organizations in support of, oropposition to such candidates, S. J. Res. 33, 112thCong., 2nd sess. (January 24, 2012); a joint resolu-tion proposing an amendment to the Constitutionof the United States waiving the application of thefirst article of amendment to the political speechof corporations and other business organizations,U.S. Congress, H.J. Res. 6, 112th Cong., 1st sess.(January 5, 2011); a joint resolution proposing anamendment to the Constitution of the UnitedStates waiving the application of the first article ofamendment to the political speech of corporationsand other business, U.S. Congress, H.J. 7, 112thCong., 1st sess. (January 5, 2011); a joint resolu-tion proposing an amendment to the Constitutionof the United States relating to limitations on theamounts of contributions and expenditures thatmay be made in connection with campaigns, U.S.Congress, H.J. 8, 112th Cong., 1st sess. (January 5,2011); a joint resolution proposing an amendmentto the Constitution of the United States to prohibitcandidates for election to Congress from acceptingcontributions from individuals who do not residein the State or Congressional district the candi-date seeks to represent, H.J. 65, 112th Cong., 1st

sess. (May 24, 2011); a joint resolution proposingan amendment to the Constitution of the UnitedStates giving Congress power to regulate campaigncontributions for Federal elections, H.J. 72 112thCong., 1st sess. (July 13, 2011); a joint resolutionproposing an amendment to the Constitution ofthe United States giving Congress power to regu-late campaign contributions for Federal elections,H.J. 75, 112th Cong., 1st sess. (July 13, 2011); a

joint resolution proposing an amendment to theConstitution of the United States to clarify theauthority of Congress and the States to regulatethe expenditure of funds for political activity bycorporations, H.J. 78, 112th Cong., 1st sess. (Sep-tember 12, 2011); a joint resolution proposing an

amendment to the Constitution of the UnitedStates relating to contributions and expenditureswith respect to elections, H.J. 86, 112th Cong., 1stsess. (November 14, 2011); a joint resolution pro-posing an amendment to the Constitution of theUnited States to clarify the authority of Congressand the States to regulate corporations, limited li-ability companies or other corporate entities estab-lished by the laws of any state, the United States,or any foreign state, H.J. 88, 112th Cong., 1st sess.


16/20

16

(November 15, 2011); a joint resolution proposingan amendment to the Constitution of the UnitedStates to expressly exclude for-profit corporationsfrom the rights given to natural persons by theConstitution of the United States, prohibit cor-porate spending in all elections, and affirm theauthority of Congress and the States to regulate

corporations and to regulate and set limits onall election contributions and expenditures, H.J.90, 112th Cong., 1st sess. (November 18, 2011); a

joint resolution proposing an amendment to theConstitution of the United States relating to theauthority of Congress and the States to regulatethe disbursement of funds for political activity byfor-profit corporations and other for-profit busi-ness organizations, H.J. 92, 112th Cong., 1st sess.(December 6, 2011); a joint resolution proposingan amendment to the Constitution of the UnitedStates relating to contributions and expenditureswith respect to Federal elections, H.J. 97, 112thCong., 1st sess. (December 20, 2011); a joint reso-lution proposing an amendment to the Consti-tution of the United States regarding the use ofpublic funds to pay for campaigns for election toFederal office, H.J. 100, 112th Cong., 2nd. sess.(January 18, 2012).

9. These omissions include a ban on electoralspending by non-citizens, H.J. 72; exemptingcorporate spending from First Amendment pro-tections, H.J. 6 and H.J. 7; permitting contribu-tions only by residents of state or congressionaldistrict, HJ65; requiring equal and uniform appli-cation of a regulations on spending, H.J. 72 andHJ88; and allowing content neutral regulationof spending on political activity, H.J. 78.

10. Buckley v. Valeo, 424 U.S. 1, 2338 (1976).

11. See U.S. v. Danielczyk, United States Courtof Appeals for the Fourth Circuit, June 28, 2012.Some argue that Citizens United does threatencontribution limits. See Richard L. Hasen, Citi-zens Unitedand the Illlusion of Coherence,Michi-

gan Law Review 109, no. 581 (2011): 61617.

12. See John J. Coleman, The Benefits of Cam-paign Spending, Cato Institute Briefing Paperno. 84, September 4, 2003. See also the academicarticles that are the basis for this briefing paper:

John Coleman, The Distribution of Campaign

Spending Benefits across Groups,Journal of Poli-tics 63, no. 3 (2001): 91634; and John Colemanand Paul F. Manna, Congressional CampaignSpending and the Quality of Democracy,Journalof Politics 62, no. 3 (2000): 75789.

13. Move to Amend, We the People Amendment,Section 2, http://movetoamend.org/amendment.

14. Cass Sunstein, Democracy and the Problem ofFree Speech, chap. 2 (New York: Free Press, 1995).

15. United States v. Carolene Products Co., 304 U.S144, 152 (1938), footnote 4 remarks It is unnec-essary to consider now whether legislation whichrestricts those political processes which can or-dinarily be expected to bring about repeal of un-desirable legislation is to be subjected to moreexacting judicial scrutiny under the general pro-

hibitions of the Fourteenth Amendment than aremost other types of legislation. The Court notessuch restrictions voided by earlier courts haveincluded restraints upon the dissemination ofinformation . . .

16. Buckley v. Valeo, 20.

17. Geoffrey R. Stone, Is Money Speech? Huffington Post, February 5, 2012: Not a single justiceof the United States Supreme Court who has votedin any of the more than a dozen cases involving theconstitutionality of campaign finance regulationsregardless of which way he or she came out in thecase, has everembraced the position that money is

not speech.

18. See Nixon v. Shrink Missouri Government, 528U.S. 377 (2000).

19. H.J. Res. 21; H.J. Res. 29.

20. Santa Clara County v. Southern Pacific RailroadCompany, 118 U.S. 394 (1886).

21. First National Bank of Boston v. Bellotti, 435 U.S765, 776-783 (1978). Hence, H.J. Res. 21 begs theconstitutional question. The amendment limitsconstitutional rights to natural persons and then

states that corporate entities are subject to suchregulation as the people, through their electedState and Federal representatives, deem reasonableand are otherwise consistent with the powers ofCongress and the States under this Constitution.Given that Citizens United did not depend on cor-porate personhood, the decision would still standeven if H.J. Res. 21 became part of the Constitution

22. S.J. Res. 5 explicitly identifies for-profit cor-porations as subject to the new powers grantedthe Congress.

23. A concise guide to the kinds of speech not in-cluded in the freedom of speech may be found

in Eugene Volokh, Freedom of Speech and ofthe Press, in The Heritage Guide to the Constitutioneds. David Forte and Matthew Spalding (Wash-ington: Regnery Publishing, 2005): 31115.

24. This describes two 2012 ads funded by SuperPACs supporting the major party candidatesSee Michael D. Shear, Super PACs Release Duel-ing Ads, May 30, 2012, http://thecaucus.blogsnytimes.com/2012/05/22/super-pacs-release-dueing-ads/.


17/20

17

25. H.J. Con. Res. 6 identifies governmentalinterests that should compete with freedom ofspeech. See (2) of the bill.

26. In the 113th Congress, H.J. Res. 20 and H.J.Con. Res. 6 identify equality as a value; the latterproposal also identifies corruption as a reason to

regulate money in politics. In the 212th Congress,H.J. 92 mentioned preventing corruption or the ap-pearance of corruption as it goal: We, the Peopleneed not identify a purpose for a grant of power.Presumably giving Congress power to regulate orprohibit spending on electoral speech serves thepurposes of the preamble. The power to limit elec-toral spending, and thus, speech, would appear tocontravene securing the Blessings of Liberty toourselves and our Posterity.

27. Commentators also define corruption byits effects on citizens: When democracy seems acharade, we lose faith in its process. That doesntmatter to some of us we will vote and participate

regardless. But to more rational souls, the charadeis a signal: spend your time elsewhere, because thisgame is not for real. Participation thus declines,especially among the sensible middle. Policy getsdriven by the extremists at both ends. LawrenceLessig,Republic, Lost: How Money Corrupts Congressand a Plan to Stop It (New York: Hachette BookGroup, 2011), p. 9.

28. Nathaniel Persily and Kelli Lammie, Per-ceptions of Corruption and Campaign Finance:When Public Opinion Determines Constitution-al Law, Scholarship at Penn Law, Paper 30 (2004),http://lsr.nellco.org/upenn_wps/30.

29. Ibid.

30. Buckley, 2627.

31. Buckley, 2021. The Court found that con-tributions implicate freedom of speech less thandirect spending on speech. Contributions wereonly a symbolic expression of support for a can-didate, not an argument for their election.

32. [t]he absence of prearrangement and coor-dination . . . alleviates the danger that [indepen-dent] expenditures will be given as a quid pro quofor improper commitments from the candidate,

Buckley, 424 U.S. at 47. Quoted in Citizens Unitedat 60. Following Buckley, Justice Kennedy in CitizensUnited ruled that independent expenditures, includ-ing those made by corporations, do not give rise tocorruption or the appearance of corruption. Ibid., 80.

33. In its supplemental brief for the rehearing ofCitizens Unitedbefore the Supreme Court, the gov-ernment put forth this argument. See p. 8 of thebrief at http://www.scotusblog.com/wp-content/uploads/2009/07/08-205_us_supp.pdf.

34. See, for example, Shailagh Murray, A Con-tentious Campaign in a Battleground State,Washington Post, October 25, 2006.

35. The observation was first made many yearsago. See Frank J. Sorauf,Money in American Elections(Glenview, IL: Scott, Foresman, 1988), pp. 310 and

following.

36. Congress might de facto delegate details to theFederal Election Commission. I assume for presentpurposes that in such matter the FEC would be atrusted agent for Congress in part because control-ling independent spending would be a salient mat-ter for many members.

37. Such deference was counted a virtue by amajority of the Supreme Court in McConnell v.

Federal Election Commission, 540 U.S. 93 (2003).

38. For example, see Jennifer Steinhauer and Jona-than Weisman, Super PAC Increasing Congresss

Sense of Insecurity,New York Times, March 8, 2012.

39. Anthony J. Nownes, Total Lobbying: What Lob-byists Want (and How They Try to Get It) (New York:Cambridge University Press, 2006), p. 80.

40. Nownes, p. 81; Lessig, p. 145.

41. Nownes, p. 81.

42. Citizens United, 4445.

43. Ibid.

44. At the same time, most government offi-cialsespecially elected officialsalso tend to fa-

vor constituents when they decide whom to meetwith. Nownes, p. 215.

45. This analysis will treat equality later.

46. Austin v. Chamber of Commerce, 494 U.S. 660(1990).

47. Commentators dispute whether the Courtembraced an equality rationale in Austin. SeeHasen, p. 587. Justice Stevens denied Austins egali-tarianism in his Citizens United dissent, p. 971, n.69. In the dissent toNational Bank of Boston, Justice

Byron White wrote of a compelling governmentinterest in preventing unfair advantage in the po-litical process and corporate domination of theelectoral process, pp. 80910.

48. The political scientist Gary Jacobson is asso-ciated with this analysis. See the summary of thisscholarship in Jason M. Roberts and Jamie L. Car-son, House and Senate Elections, in The Oxford

Handbook of the American Congress, ed. Eric Schicklerand Frances E. Lee (New York: Oxford University


18/20

18

Press, 2011), pp. 15255.

49. J. Goodliffe, Campaign War Chests andChallenger Quality in Senate Elections, Legis-lative Studies Quarterly 32 (2007): 13556, doi:10.3162/036298007X202010.

50. A list of defeated incumbents in 2010 may befound at http://www.opensecrets.org/politicians/casualties.php?cycle=2010. Spending by incum-bents and challengers may be found at http://www.opensecrets.org/bigpicture/stats.php.

51. Zephyr Teachout, The Anti-Corruption Prin-ciple, Cornell Law Review 94, no. 341 (2009): 347, n.1. A concise summary of Teachouts argument andapt criticisms may be found in Seth Barrett Till-man, Opening Statement, Citizens United and theScope of Professor Teachouts Anti-Corruption Principle,107Northwestern Law Review Colloquy1 (2012): 399.See also Seth Barrett Tillman, Closing Statement,The Original Public Meaning of the Foreign Emolu-

ments Clause: A Reply to Professor Zephyr Teachout,107Northwestern Law Review Colloquy 1 (2013): 180,http://ssrn.com/abstract=2012803.

52. Teachout, 342.

53. Ibid., 37374.

54. Ibid.

55. Lawrence Solum remarks that originalismmeans different things to different people. He of-fers four elements of a definition. See Lawrence B.Solum, We are All Originalists Now, in Constitu-tional Originalism, A Debate (Ithaca: Cornell Univer-sity Press, 2011): 24.

56. Ibid., p. 2, fn. 3, and the citation to Gary Law-son therein.

57. Art. I, Sec. 6, Cl. 2: . . . no Person holding anyOffice under the United States, shall be a Memberof either House during his Continuance in Office.

58. Art. I, Sec. 6, Cl. 2: No Senator or Represen-tative shall, during the Time for which he waselected, be appointed to any civil Office under the

Authority of the United States, which shall havebeen created, or the Emoluments whereof shall

have been encreased during such time. . .

59. Art. I, Sec. 9, Cl. 8: No Title of Nobility shallbe granted by the United States: And no Personholding any Office of Profit or Trust under them,shall, without the Consent of the Congress, acceptof any present, Emolument, Office, or Title, of anykind whatever, from any King, Prince, or foreignState. Lessig also cites the clause.Republic Lost, 18.

60. 381 U.S. 479 (1965).

61. Teachout, 382.

62. United States Constitution, Article I, section9, clause 8.

63. Tillman, 5.

64. Ibid.

65. Ibid.

66. Teachout, 393, n. 245.

67. Tillman, 6.

68. Ibid., 1218.

69. Teachout argues that the intention to usepublic means for private ends defines corruption382.

70. The anti-corruption principle might pose

the greatest threat to the integrity of the incum-bents. As Madison notes, No man is allowed tobe a judge in his own cause, because his interestwould certainly bias his judgment, and, not im-probably, corrupt his integrity. James MadisonFederalist No. 10, in The Federalist: The Gideon

Edition, ed. George W. Carey and James McClel-lan (Indianapolis: Liberty Fund, 2001), p. 44Teachout, 380, speaks of limiting temptation ofofficials as a part of an anti-corruption strategy.

71. People who differ about much agree on thispoint. See Michael Sandel,Democracys Discontent

America in Search of a Public Philosophy, chaps. 1 and2 (Cambridge: Harvard University Press, 1996)and Aladair MacIntyre, After Virtue, 2nd ed.(Notre Dame: University of Notre Dame Press1984). Both authors rue the lack of a commit-ment to a common good. They both also affirmits absence.

72. Lessig, 128.

73. Ibid.

74. Ibid.

75. There are two ways we might measure distortion. One maps the gap between what the People

believe about an issue and what Congress doesabout that issue. Call this substantive distortionThe other way maps the gap between what Con-gress actually works on and what is important or,alternatively, what the people want them to workon. Call this agenda distortion. Lessig, 151.

76. Lessig, 109. Lessig arguably misunderstandsthe nature of a gift. He assumes the gift of a dona-tion requires strict reciprocity from the recipient: acontribution requires a policy favor. The philoso-


19/20

19

pher David Schmidtz notes, however, a differentmeaning accorded gifts. For Schmidtz, if a gift isgiven, any attempt literally to repay runs a risk ofdishonoring [the gift]. So, realizing this, we may in-stead pass it on, explicitly or implicitly in the origi-nal benefactors name. In passing the favor on, werestore symmetry around ourselves, between what

we have given and were given. See David Schmidtz,Elements of Justice (New York: Cambridge UniversityPress, 2006), p. 83. Lessig seems to be concerned, asmost reformers are, with an exchange of money formoney, services, or goods. But such exchanges arenot commonly thought of as gifts but rather eco-nomic transactions.

77. Lessig, 160.

78. Ibid., 151.

79. Ibid., 127.

80. Madison, Federalist No. 10, 43.

81. Ibid., 48.

82. Ibid., 46.

83. In Lessigs plan, taxpayers would have partof their taxes earmarked for candidates. The tax-payer would select which candidate receives histaxes. Those who do not select a candidate wouldsee their earmark go to their political party. Voterswho did not wish to support a candidate or a partywould be deprived of that choice. Lessig, chap. 16.

84. Lessig, 271.

85. Ibid., 271.

86. Samuel Issacharoff, Comment: On Politi-cal Corruption,Harvard Law Review 124, no. 118(2010): 126.

87. Ibid., 127.

88. Ibid., 129.

89. Ibid.: it is often difficult to distinguish be-tween rewards to constituents and matters ofpolicy and principle.

90. The judiciary might be empowered to evalu-ate Congress view of corruption in a clientelistframework. The courts would find themselves ina situation similar to applying the general wel-fare clause to ordinary legislation, a task judgeshave refused to take up since 1937.

91. E. Joshua Rosenkranz and Richard L. Hasen,Introduction: Money, Politics, and Equality,Texas Law Review 77, no. 1603 (1999): 1605. TheCourts concern there about the corrosive and

distorting effects of immense aggregations ofwealth at least smacks of equality, though theCourt contorted to couch it as a different type ofcorruption. Courts currently do not recognizean equality rationale for regulating campaign fi-nance. SeeBuckley v. Valeo, 4849. Political equal-ity is also unlikely to justify regulating lobbying.

Richard L. Hasen, Lobbying, Rent-Seeking, andthe Constitution, Stanford Law Review 64, no.191 (2012): 216.

92. See Daniel P. Tokaji, Reviving Equality inCampaign Finance: What the U.S. Can Learn fromCanada, Election Law@Moritz, January 28, 2011at http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=8103. See also Colorado Republican

Federal Campaign Comm. v. Federal Election Commn,518 U.S. 604, 64849 (1996) (Stevens, J., dissenting).

93. H.J. Res. 20 and H.J. Res. 6.

94. Adam Meirowitz, Electoral Contests, In-

cumbency Advantages, and Campaign Finance,Journal of Politics 70 (July 2008): 68199.

95. Tim Groseclose, Left Turn: How Liberal MediaBias Distorts the American Mind(New York: St. Mar-tins, 2011), pp. 201218.

96. See, for example, S.J. Res. 5, 113th Congress,First Session, January 28, 2013, section 3.

97. See John Samples, The Fallacy of CampaignFinance Reform (Chicago: University of ChicagoPress, 2006), pp. 14344, and sources cited therein.

98. CNNPolitics.com, Election Center 2008,http://www.cnn.com/2008/POLITICS/11/04/exit.polls/.

99. See President Exit Polls, New York Times,http://elections.nytimes.com/2012/results/president/exit-polls.

100. See Campaign Finance Institute, Moneyvs. Money-Plus: Post-Election Reports RevealTwo Different Campaign Strategies, January 11,2013, at http://www.cfinst.org/Press/Releases_tags/13-01-11/Money_vs_Money-Plus_Post-Election_Reports_Reveal_Two_Different_Campaign_Strategies.aspx.

101. The Democracy Alliance, for example, con-nected donors to producers of speech, seeking tobring back the progressive majority in this coun-try. See Thomas B. Edsall, Rich Liberals Vowto Fund Think Tanks, Washington Post, August7, 2005. Later the Democracy Alliance focusedmuch more closely on electoral success. See RyanGrim, Peter Lewis Leaves Democracy Alliance,The Liberal Donor Network, Huffington Post,March 21, 2012.


20/20

RELATED PUBLICATIONS FROM THE CATO INSTITUTE

Libertarian Roots of the Tea Partyby David Kirby and Emily McClintock Ekins, CatoInstitute Policy Analysis no. 705 (August 6, 2012)

Corporate Welfare in the Federal Budgetby Tad DeHaven, Cato Institute PolicyAnalysis no. 703 (July 25, 2012)

If You Love Something, Set It Free: A Case for Defunding Public Broadcasting byTrevor Burrus, Cato Institute Policy Analysis no. 697 (May 21, 2012)

Renewing Federalism by Reforming Article V: Defects in the ConstitutionalAmendment Process and a Reform Proposalby Michael B. Rappaport, Cato InstitutePolicy Analysis no. 691 (January 18, 2012)

Congress Surrenders the War Powers: Libya, the United Nations, and the

Constitutionby John Samples, Cato Institute Policy Analysis no. 687 (October 27,2011)

The Case for Gridlock by Marcus E. Ethridge, Cato Institute Policy Analysis no. 672(January 27, 2011)

The DISCLOSE Act, Deliberation, and the First Amendmentby John Samples,Cato Institute Policy Analysis no. 664 (June 25, 2010)

Lawless Policy: TARP as Congressional Failure by John Samples, Cato InstitutePolicy Analysis no. 660 (February 4, 2010)

The Libertarian Vote in the Age of Obama by David Kirby and David Boaz, CatoInstitute Policy Analysis no. 658 (January 21, 2010)

Attack of the Utility Monsters: The New Threats to Free Speech by Jason Kuznicki,Cato Institute Policy Analysis no. 652 (November 16, 2009)

Fairness 2.0: Media Content Regulation in the 21st Centuryby Robert Corn-Revere,Cato Institute Policy Analysis no. 651 (November 10, 2009)

Broadcast Localism and the Lessons of the Fairness Doctrine by John Samples, Cato

Institute Policy Analysis no. 639 (May 27, 2009)

A Critique of the National Popular Vote by John Samples, Cato Institute PolicyAnalysis no. 622 (October 13, 2008)

move to defend: the case against the constitutional amendments seeking to overturn citizens united,...

Documents