On June 3, 2014, the Senate Judiciary’s subcommittee on the Constitution, Civil Rights, and Human Rights held its first hearing on SJR 19 (the proposed 28th Amendment to the Constitution that would allow Congress the ability to regulate all money in elections). With a packed hearing room, several senators made their cases both for and against SJR 19 (also referred to as SJRes 19). There were 3 knowledgeable and accomplished panelists invited to answer questions and give input at the hearing. Key portions of that 3-hour hearing are summarized below, along with some additional background information (indicated in blue).
One of the senators speaking at the hearing was Senator Dick Durbin of Illinois. He began by quoting statistics on the growth in spending by outside groups since the Citizens United decision. He stated that spending by outside groups in mid-term elections has tripled from $27.6 million in 2010 to $97.7 million so far in 2014. In the 2006 midterm elections, prior to Citizens United, outside groups spent a mere $3.5 million in comparison. Super PACs spent more than $130 million on federal elections in 2012, with 60% of all Super PAC donations coming from just 159 Americans.
Senator Durbin gave an example of how one multimillionaire in North Carolina, Art Pope, accounted for 72% of all outside spending in that state in 2010. With that money, Pope and his associates targeted 22 state races in North Carolina. The candidates that he supported won 18 of those 22 races. In 2012, a large portion of the $8.1 million of outside money spent on the governor’s race was tied to Mr. Pope. The candidate that Mr. Pope supported, Pat McCrory, was elected governor. Before Governor McCrory was even sworn into office, he announced that he would appoint Art Pope as his Budget Director.
North Carolina State Senator Floyd McKissick, Jr., one of the panelists who testified at the hearing, also talked about Art Pope’s influence in his state. He stated that Pope’s influence was behind major changes that have taken place in North Carolina. Besides slashing the state’s budget, Pope was behind changes that have made it harder for citizens of North Carolina to vote and easier for those with money to funnel it into elections.
Senator McKissick gave an example of a judicial primary race in North Carolina this year where more than $1 million in outside money came into the race in its final weeks hoping to unseat the incumbent. More than $650,000 of that money came from a Washington-based dark money group and was spent on a very negative ad against the incumbent, Justice Robin Hudson. In another judicial race, this time during the 2012 general election, close to $3 million was raised. More than $2.5 million of that came from groups supporting Pope’s candidate, Justice Paul Newby. Pope and the groups supporting his efforts are interested in keeping their 4-3 majority on the North Carolina Supreme Court so that court challenges to the controversial laws that Pope has helped push through the state legislature won’t be overturned by the state’s highest court.
North Carolina had been one of the few states with a public financing option in its judicial races as a way to provide “clean elections” for its judges. Campaign finance laws with this option are designed to lessen the likelihood of corruption due to the influence of large political contributions. A study of the records revealed that in the 2002 elections, the last election year before the North Carolina public financing law was implemented, that 73% of all judicial contributions came from attorneys, special interests, and political committees. After the public financing law was implemented, that number dropped to 14% in 2004. By 2012, all 8 statewide judicial candidates were electing to participate in public financing. Because of Art Pope’s influence in the state, North Carolina repealed its public financing law in 2013.
Jamie Raskin, a constitutional scholar and Maryland state senator, was another panelist who testified. Raskin quoted Justice Elena Kagan’s dissent in Arizona Free Enterprise PAC v. Bennett (2011). In her dissent, Justice Kagan wrote that the majority treated additional campaign speech and electoral competition, afforded by Arizona’s public financing law, as a First Amendment injury. Senator Raskin points out that, in that decision, the Court’s majority struck down a state law that expanded public debate, allowed greater competition, and provided more voices and wider discussion. After the state of Arizona experienced unprecedented corruption scandals, voters there passed a ballot initiative in 1998 called the Arizona Citizens Clean Elections Act, which provided for public financing of elections. It is also noteworthy that the majority treats additional campaign speech as a First Amendment protection in McCutcheon v FEC (2014).
Senator Raskin expressed his concern over the growth of plutocracy in our country at the expense of the democracy that our founders had envisioned. He said that Thomas Jefferson never equated corporations with citizens, and Jefferson voiced dread at the prospect of plutocracy. He quoted Jefferson when Jefferson warned future generations not to embrace a “splendid government of an aristocracy founded on banking institutions and moneyed corporations, riding and ruling over the plundered ploughman and beggar yeomanry.” Raskin compared that “nightmare vision” to the Citizens United era. He said that if we did nothing now, that it wouldn’t take long before the people no longer governed. Corporations would govern the people.
Senator Raskin reminded those in the room that there have been other times in our country’s history when the Supreme Court has undermined democracy, and we’ve had to amend the Constitution. We did it with the disenfranchisement of women and when the court upheld poll taxes. He said that most of the amendments added since the Bill of Rights have “strengthened the progress of democratic self-government and expanded the political rights of the people, even as the defenders of inequality and the elite privileged protested that their rights were being violated.”
“The wall between democracy and plutocracy is crumbling,” Raskin stated. He said that if we keep waiting to do anything, the “last few bricks will be removed soon, including contribution limits, the ban on corporate contributions, rules against coordinated expenditures, and the ban states have on writing campaign checks in legislative session.” He said that this is very likely to happen since all of them are “at odds with the Orwellian dogma of 5 Justices that money is speech, corporations are people, and to identify corruption you’ve got to find a bribe.”
Another U.S. Senator who spoke at the hearing was Senator Chuck Shumer of New York. When addressing the protection of free speech, the argument used by the Supreme Court in its controversial decisions, Senator Shumer said that we have always had “balancing tests for every amendment; they are not absolute.” He made note of child pornography laws, libel laws, and laws that prevent falsely yelling fire in a crowded theater. He said that the First Amendment has always had a balancing test.
Senator Shumer responded to Senator Ted Cruz’s concerns on free speech by asking whether someone in favor of child pornography laws was guilty of opposing free speech. “To say that you cannot have some regulation when billions of dollars cascade into the system and that’s unconstitutional is false. To say that when it comes to money there should be no balancing test, but when it comes to other parts of this amendment and other amendments, there should be a balancing test, is logically false.” He concluded, “If there ever is a balance that is needed, it is to restore some semblance of one person one vote, some equality that the founding fathers sought in our political system.”