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Rooting Out Corruption and Rewriting the Constitution

October 24, 2007 - by Donny Shaw

Want to cripple the influence of corporate and special interest money in your members of congress’ voting habits? Well, Chuck Schumer (D-NY) and Arlen Specter (R-PA) — pictured at right — have a constitutional amendment for you to get behind.

Since 1976, the Supreme Court has had the upper hand on campaign finance law. In Buckley v. Valeo, the Court overruled Congress’s 1974 Federal Election Campaign Act (FECA) Amendments law that, in response to the Watergate investigations, placed new limits on contributions to candidates for federal office and expenditure limits on federal campaigns. Specifically, The Buckley Court struck down FECA’s expenditure limits, opining (in)famously that “a restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” They equated political money with speech and subjected any regulations of it to strict scrutiny under the freedom of speech protection provided by the First Amendment.

Schumer and Specter’s constitutional amendment would overturn Buckley v. Valeo and give back to Congress the power to regulate the raising and spending of money for federal elections. It doesn’t propose any specific reforms for campaign finance laws, but it would reopen a lot of avenues.

A Supreme Court ruling, however, is no easy barrier to dismantle. For a constitutional amendment to become law it has to be approved by 2/3rds of Congress and be ratified by 3/4ths of the states within seven years. And since the Buckley case is a boon for incumbent legislators — corporations tend to nurture their investments on Capitol Hill by giving more to the incumbent candidates they have built up a relationship with — it’s going to be difficult to find many in Congress willing to pass a law that could hurt them in future elections.

Even if the support isn’t there right now to pass this amendment, it’s good to keep it on the radar of possibility. Overturning Buckley and regulating the flow of special interest money in campaigns may be the ultimate solution to creating a responsive government that encourages everyone to participate, but as Ellen Miller of the Sunlight Foundation points out, there is another way to try first:

>The Fair Elections Act, which Senators Richard Durbin (D-Ill.) and Arlen Specter (R-Pa.) introduced this spring is the current public financing horse to ride. The Act, and a corresponding bill introduced in the House, would create a full voluntary system of public funding for Senate and House candidates. Candidates that can raise $5 contributions from a set number of in-state donors will show a threshold level of public support. And if the candidate swears off further private contributions, they qualify for public funding.

The Fair Elections Act’s voluntary public financing system would allow candidates who choose to participate to spend less time raising money and satisfying big donors, and more time talking about the issues their constituents care about. It would also allow incumbents to better fulfill their duty of representing their constituents by freeing up the time they spend making phone calls to rich, often out-of-state donors.

The FECA amendments’ aim, as stated by the Buckley Court, of “equalizing the relative ability of all voters to affect electoral outcomes,” is still at the core of what needs fixing in our democracy. For voluntary public financing to leverage out corruption and quid pro quo legislating, voters need to be included in the political process at least enough to care to elect the publicly financed politician. The Fair Elections Act may do it, but we may also need the kind of shock to the system that this constitutional amendment could bring.

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