Social Education 76(5), pp 236–241 ©2012 National Council for the Social Studies Teaching about Big Money in Elections: To Amend or Not to Amend the U.S. Constitution? James M. M. Hartwick and Brett L. M. Levy “Politics has become so expensive that it takes a lot of money even to be defeated.” — Will Rogers (1879–1935) Last summer, California and Massachusetts became the sixth and seventh states— activity is independent of the candidates’ along with Hawaii, New Mexico, Vermont, Rhode Island, and Maryland—to send a campaigns. These cases led to the rise resolution to the U.S. Congress calling for a constitutional amendment to (1) end the of “superPACs.” As long as they do not court’s extension of personhood rights to corporations, and (2) enable the government coordinate with campaigns and do not to definitively regulate campaign finances. This fall, with the bipartisan support of contribute directly to the candidates, its Democratic governor and Republican lieutenant governor, Montana is asking superPACs can raise unlimited funds voters to consider a referendum advising Montana’s congressional delegation to sup- from corporations, non-profits, unions, port such a constitutional amendment. Meanwhile, the current Congress has already and individuals and may spend those considered more than a dozen resolutions to amend the Constitution to strengthen funds to promote their favored political Congress’s ability to limit corporate funding of election activities, and 20 states have candidate or cause. In addition, non-prof- introduced similar resolutions.1 its, like “social welfare” groups (501 [c][4] s), may engage in unlimited non-coordi- Political support is growing. More than Elections Commission (FEC) decision, nated independent spending on so-called 120 members of Congress, 1,800 pub- American citizens and policymakers educational issue advertisements, and lic officials,2 and 200 cities, towns, and have vigorously debated how and if there unlike PACs and superPACs, these non- counties across the United States have should be limits on corporate rights and profits are not required to disclose their called for such an amendment.3 When on the increasing power of big money in donor list.6 This has opened the door to the Senate held a Judiciary Subcommittee politics. In Citizens United, the Supreme large contributions from corporations hearing on the topic in July, it received Court ruled 5–4 that corporations and and others, perhaps even foreign interests, nearly 1.9 million pro-Amendment unions, like individual citizens, are who wish to influence elections and keep signatures,4 and in August, President endowed with free speech rights that can their influence secret. Obama indicated his support when he be exercised through political expendi- While the influence of big money on stated: “Over the longer term, I think we tures and that limits on such “speech” elections is not new, immediately after need to seriously consider mobilizing a are unconstitutional. Two months later, these landmark rulings, election spending constitutional amendment process to the D.C. Court of Appeals extended in the 2010 midterm (non-presidential) overturn Citizens United , assuming the these rules by deciding in SpeechNow v. election increased exponentially over the Supreme Court doesn’t revisit it.”5 Clearly, FEC that non-profit political organiza- previous midterm elections.7 Since 2010, a movement is emerging, and given the tions, such as political action committees “outside” election spending—campaign high stakes, fostering understanding of (PACs), could legally accept unlimited expenditures by individuals and orga- the issues at hand is paramount. donations for the purpose of running nizations not officially affiliated with What is all the fuss about? Since the advertisements advocating the election candidates—has increased enormously. landmark Citizens United v. Federal or defeat of candidates, as long as such Big donors have played an increasingly Social Education 236 prominent role in supporting election Excerpts from the Citizens United vs. FEC Decision campaigns, largely through superPACs. For example, in the 2012 Republican presidential primaries, 20 wealthy donors contributed about half the funds 8 Majority Opinion Dissenting Opinion of the major superPACs , and one couple (Justice Kennedy) (Justice Stevens) expects to give up to $100 million for this year’s election.9 All totaled, spending on the 2012 presidential contest is projected Although they make enormous contri- to exceed $2 billion, breaking all previ- Under the antidistortion rationale, butions to our society, corporations are ous records for election spending.10 Congress could also ban political speech not actually members of it. They cannot With the huge sums of money being of media corporations.…Differential vote or run for office…[t]he financial devoted to elections, what do big donors treatment of media corporations and resources, legal structure, and instru- other corporations cannot be squared mental orientation of corporations raise expect in return? A thorough analysis of with the First Amendment, and there legitimate concerns about their role in elected officials’ voting records indicate is no support for the view that the the electoral process. Our lawmakers have that politicians respond more readily Amendment’s original meaning would a compelling constitutional basis, if not to the opinions of constituents who are permit suppressing media corporations’ also a democratic duty, to take measures more able to make financial contribu- political speech. designed to guard against the potentially tions.11 In addition, there is a widespread deleterious effects of corporate spending in local and national races. perception of the corrupting influence on political leaders as a result of their Although the First Amendment pro- need to secure big dollars to get elected. vides that “Congress shall make no law… abridging the freedom of speech,” 441b’s It might also be added that corpora- According to a recent Brennan Center for prohibition on corporate independent tions have no consciences, no beliefs, Justice at NYU School of Law poll, nearly expenditures is an outright ban on speech, no feelings, no thoughts, no desires. 70 percent of Americans believe super- backed by criminal sanctions. It is a ban Corporations help structure and facili- PAC spending will lead to corruption, notwithstanding the fact that a PAC cre- tate the activities of human beings, to be and 85 percent of those who expressed sure, and their ‘personhood’ often serves ated by a corporation can still speak, for an opinion believe that, compared with a PAC is a separate association from the as a useful legal fiction. But they are not corporation. Because speech is an essen- themselves members of ‘We the People’ past elections, the money being spent by tial mechanism of democracy—it is the by whom and for whom our Constitution political groups this year is more likely means to hold officials accountable to the was established. to lead to corruption.12 Undue influence, people—political speech must prevail or at the very least the perception of quid against laws that would suppress it by pro quo corruption, is troubling and design or inadvertence. The Court’s ruling threatens to undermine undermines citizens’ faith in democracy. that integrity of elected institutions across the Nation. The path it has taken to reach Proposals for a Constitutional its outcome will, I fear, do damage to this Amendment We now conclude that independent institution. expenditures, including those made by In the current Congress, there have corporations, do not give rise to corrup- been more than a dozen resolutions to tion or the appearance of corruption. The marketplace of ideas is not actually a amend the Constitution to strengthen place where items—or laws—are meant to Congress’s ability to limit corporate be bought and sold[.] funding of election activities and nul- lify the Citizens United ruling.13 Along with the congressional proposals, there With the advent of the Internet, prompt At bottom, the Court’s opinion is thus disclosure of expenditures can provide a rejection of the common sense of the are many individuals and groups (e.g., shareholders and citizens with the infor- American people, who have recognized a Move to Amend, Free Speech for the mation needed to hold corporations and elected officials accountable for their posi- need to prevent corporations from under- People, Common Cause, and Public tions…This transparency enables the elec- mining self-government since the founding, Citizen) who are seeking to bring about torate to make informed decisions and and who have fought against the distinctive an amendment to address the problem give proper weight to different speakers corrupting potential of corporate election- of money in politics. and messages. eering since the days of Theodore Roosevelt. It is a strange time to repudiate that com- While these groups and individuals mon sense. appear to agree on the problem, the wording of the proposed amendments October 2012 237 www.restoreourfuture.com www.prioritiesusaaction.org varies. However, most seek to reverse fourth section, legislators at the state and so. Given that many citizens and legisla- the Citizens United decision, end cor- federal levels would be constitutionally tors would need to be persuaded, these porate personhood rights,14 and affirm permitted to limit the amount of money are significant hurdles to clear. the power of legislators to regulate that non-profits, unions, and individu- Despite the movement to amend the funds aimed at influencing electoral als could contribute to candidates and Constitution, national consensus has outcomes.15 Meanwhile, a few seek to non-affiliated political organizations (e.g., yet to be reached. Numerous arguments charge Congress with enacting a public superPACs). Thus, the amendment as a opposing a constitutional amendment financing system16 and make Election whole would enable Congress to impose are provided on page 242 in Table 1: Day a federal holiday.17 One proposed significant spending limits that Citizens Examples of Arguments and Resources.