Why Republican Senators Should Support A Campaign Finance Amendment

John Bonifaz and James Nelson President, Free Speech for People; Former Justice, Montana Supreme Court
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In the wake of the Supreme Court’s Citizens United v. FEC ruling four years ago, millions of Americans across the political spectrum have mobilized in support of a constitutional amendment that would overturn that ruling and restore republican democracy to the people. On Tuesday, June 3, the Senate Judiciary Committee held a historic hearing on this matter. Some may try to claim that this is a partisan fight. But this is not about one party or another. It is a fight for all Americans.

People across the nation, regardless of their political affiliation, are making clear that special interest money – whether from corporations, unions, or wealthy individuals – should not drown out the voices of ordinary citizens. In fact, more than 100 Republican officials since the Citizens United ruling have joined the call for a constitutional amendment that would end our current system of unlimited campaign spending. Most of those officials have done so by voting for resolutions in their state legislatures calling for such an amendment.

Further, public opinion research has long indicated robust popular support for an amendment, across party lines. For example, a 2010/2011 Peter Hart poll found that 79 percent of Americans, including 68 percent of Republicans, 82 percent of independents, and 87 percent of Democrats support such an amendment.

And, a 2012 Associated Press poll found that 83 percent of Americans, including 81 percent of Republicans, 78 percent of independents, and 85 percent of Democrats believe “there should be limits on the amount of money corporations, unions, and other organizations can contribute to outside organizations trying to influence campaigns for President, Senate, and U.S. House.”

The best poll, of course, is an actual vote of the people, such as the statewide votes held in November 2012 in Colorado and Montana on ballot questions calling for a constitutional amendment. Both votes demonstrated similarly strong support: 74 percent of Coloradans approved Amendment 65; Montanans approved Initiative 166, also by 74 percent, while simultaneously backing Mitt Romney for President by a margin of more than 10 points.

In addition, more than 2,000 business leaders throughout the nation have voiced their support of an amendment. They understand that a political system which allows the largest corporations in our country to exercise disproportionate influence over our public policy stifles competition in the marketplace and harms our economy.

No one has a First Amendment right to drown out other people’s speech. The Supreme Court stated this clearly in its 1949 case in Kovacs v. Cooper. In Kovacs, a union in the city of Trenton was blaring its message with a sound truck going down every street. In response, the city passed an ordinance requiring that sound trucks could only go down every third street. The Supreme Court upheld the ordinance as a reasonable regulation on the manner of speech. It found that public streets served other public purposes that needed to be protected and, as Justice Jackson wrote in his concurrence, “freedom of speech for Kovacs does not … include freedom to use sound amplifiers to drown out the natural speech of others.”

The DC Circuit Court of Appeals in Buckley v. Valeo recognized this very point in finding the campaign spending limits at issue in that case to be constitutional:  “It would be strange indeed,” the appellate court said, “if, by extrapolation outward from the basic rights of individuals, the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money, and because the amounts they give and spend cannot be limited.”

As James Madison wrote in The Federalist Papers No. 57, “Who are to be the electors of the federal representatives?  Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune.  The electors are to be the great body of the people of the United States.”

In the spirit of James Madison, it is time for a 28th Amendment to the Constitution that restores that fundamental promise of our Republic: government of, by, and for the people.