As the US Congress meanders towards its August recess, senators and representatives will be looking forward to escaping the long sweaty days of a Washington DC summer. They have much to think about, however, as they consider the proposed constitutional amendment on campaign finance, the ramifications of which should make them perspire.
The ‘democracy for all’ amendment, which if passed would become the twenty-eighth amendment to the US Constitution, aims to reverse the impact of Supreme Court rulings such as Citizens United v Federal Electoral Commission and McCutcheon v Federal Electoral Commission. It is said that both of these rulings have created a political climate in which wealthy donors and corporations can effectively buy an election result through unlimited donations and financing. The joint resolution (SJ Res 19 and HJ Res 119) will first ‘set reasonable limits on the raising and spending of money by candidates and others to influence an election’, and second, ‘may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections’.
The first part is self-explanatory, but to understand the implications of the second we first need to decipher what ‘artificial entity’ means. As defined by most states, an artificial entity is any corporation. This would include for-profit businesses, but could also include NGOs, charities, think tanks and activist groups. In fact, it would include media organisations and much of the press, too – although, there is also a third part to the proposed amendment which states that ‘nothing in this article shall be construed to grant Congress or the states the power to abridge the freedom of the press’.
This means that large media empires, often owned by extremely wealthy people, are being granted a right that another person in any other ‘artificial entity’ (wealthy or otherwise) will not have. If we follow the logic of the proposed amendment, surely the group we should be most worried about in terms of exerting political influence is the mass media? But this is where the logic of the amendment becomes twisted. In picking and choosing who can speak freely, and how loudly they can speak, the proposed amendment begins to look increasingly arbitrary.
One of the great achievements of America’s First Amendment is that it has always aimed to protect freedom of speech without limitations. It doesn’t say you can speak freely as long as it isn’t too loud; it doesn’t say you can have free speech unless you are a billionaire; and it certainly doesn’t say you can speak freely so long as you don’t team up with others to find a way to fund your speech. In fact, it does not address the financial underpinnings of speech at all. The town crier of yesteryear has been replaced by billboards, yard signs and TV attack ads, and today’s amplification comes with higher and higher costs attached. But what has not changed is that voters and the public are not stupid. We do not just take what we hear or see and act on it like mindless robots.