Hillary Clinton was widely quoted telling a handful of Iowans on April 14: “We need to fix our dysfunctional political system and get unaccountable money out of it once and for all — even if it takes a constitutional amendment.” The Washington Post identified this statement as “one of several pillars of her 2016 presidential campaign.” CBS based its headline for this Clinton story on the quote that this pillar represented one of “four big fights that I think we have to take on.” Her communications director, elaborating on the transcript of Clinton’s spare comments on the subject, added “It’s something she’s really concerned about.”
It is safe to assume that after months crafting the four policy pillars of her candidacy, and the way the message itself was tightly controlled from Iowa, that Clinton’s particular phrasing for her “unaccountable money” pillar was precisely as intended by her campaign team.
The Post’s headline writers and others converted Clinton’s hypothetical statement, “if it takes a constitutional amendment,” into a far more definite “support for a constitutional amendment,” as if Clinton is expected to propose or endorse a constitutional amendment during her campaign.
Slate‘s dog-whistle headline, relying on nothing more than the above quote in the Post, transformed her statement even further: “Hillary Clinton Hints at Support for Constitutional Amendment to Overturn Citizens United.” The Post, and presumably Clinton in Iowa, said nothing at all about Citizens United, let alone support for any “amendment to overturn” it. What Clinton did say is closer to the opposite of either of those two concepts.
Clinton’s statement “supports” not getting all or any part of interested money out of politics, which is what people advocating an “Amendment to Overturn Citizens United” think they are supporting. Clinton is speaking solely about “unaccountable money.” Such money can become fully “accountable” without being exluded from the pay to play system of US politics. Clinton is simply advocating its disclosure.
Under her proposal the embarrassing flood of money into US politics, anticipated to explode even further in her own campaign, will not be stanched. It would be accounted for by disclosing its provenance, which is now often left undisclosed by use of 527‘s and other IRS conduits. She considerately wants Americans to know who is buying the power to operate their erstwhile democracy against their every interest. There is no assurance that such disclosure would have any significant impact on the pervasive corruption of U.S. politics.
Under systemic corrupion, disclosure actually can help circumvent one of the few remaining inconveniences to plutocrats. Plutocrats who feel their “freedom of speech” constrained by new $5 million contribution limits per person per election cycle jointly endoresed by Congress and the Supreme Court can spend as much as they want on “independent” electioneering provided, so the cover story goes, they do not “coordinate” their expenditures with the campaigns. But to buy influence the candidate needs to know who is paying them off. By bridging this inconvenient gap in the system, formal disclosure required for everyone by law is a perfect solution for legalized coordination. Accordingly, disclosure is the reform that Democrats and their allies are selling to their supporters, and the reform the plutocrat justices of the Roberts Court also promote with no fear of significantly upsetting the corrupt political system they maintain.
Where corruption is systemic, Clinton’s proposition that actual “accountability” is even possible, other than in the sense of mere disclosure, is itself highly dubious. When the system requires all competitors to be on the take, disclosure alone fails to create any effective new options for making politician actually accountable to voters. In this system where the Supreme Court legalizes corruption and the mass media collects a toll to mediate their messages, only the proxies of plutocrats are on offer to voters.
As a lawyer, Clinton must already understand that no constitutional amendment is required to accommodate a legislative remedy for her “unaccountable money” pillar. Laws under the existing Constitution can require all the additional disclosure that she could possibly want. Disclosure requirements for campaign contributions have existed in federal law since the Progressive Era’s Publicity of Political Contributions Act of 1910, 36 Stat. 822. The constitutionality of such disclosure laws has never been doubted.
In Ex Parte Curtis (1882) (8-1) the Supreme Court ruled, without even bothering to argue the point, that the power of Congress to prohibit political corruption outweighs any asserted First Amendment interest in allowing political donations. If the First Amendment argument made by the petitioner in Curtis, and dismissed by the government’s brief as unworthy of serious attention, albeit accepted by a lone dissenter, could not legalize money in politics against a total ban, then certainly requirements that political investments merely be disclosed could have raised no conceivable objection before the Nixon Court reversed the Curtis rule without mentioning it nearly a century later.
The Supreme Court held disclosure laws to be constitutional in Burroughs v. United States (1934) (9-0) when it upheld the strengthened disclosure requirements of the 1925 Federal Corrupt Practices Act. As that Court explained, disclosure requirements are “calculated to discourage the making and use of contributions for purposes of corruption.” This most conservative of any Supreme Court majority prior to the current Roberts 5 resoundingly rejected the very idea that disclosure requirements might be constitutionally invalid, calling the “proposition so startling as to arrest attention.” Quoting from another deeply conservative Gilded Age Court lineup in Ex parte Yarbrough, 110 U.S. 651 (1884), the 1934 Court explained that “government … must have the power to protect the elections on which its existence depends from violence and corruption … the two great natural and historical enemies of all republics.”
Later in United States v. Harriss, 347 U.S. 612, 625 (1954) the Supreme Court again expressly approved mandatory disclosure of political investments connected with some actual speech in the context of lobbying. See also National Association of Manufacturers v Taylor (D.C. Cir. 2009) (upholding lobbying disclosure under Honest Leadership and Open Government Act of 2007). Chief Justice Warren held in Harriss that,
the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent… Congress… is not constitutionally forbidden to require the disclosure of lobbying activities. To do so would be to deny Congress in large measure the power of self-protection.
Since the outset of the current era of systemic corruption of politics the Supreme Court responsible for making that corruption systemic has nevertheless, without reservation, reaffirmed the same principles. Disclosure was endorsed by Buckley v Valeo (1976), the judicial mother lode for legalizing systemic corruption, and again by Citizens United (2010), the bete noir of all professional activists working the campaign finance silo. When the Roberts Court overturned aggregate limits for political investors in McCutcheon (2014) , Justice Roberts lauded this “less restrictive alternative” which also “given the Internet, … offers much more robust protections against corruption” than ever.
Though the constitutionality of disclosure laws has for a century been of little or no demonstrable utility in preventing the current systemic levels of political corruption, it is nevertheless regularly trotted out in this manner as a cure-all by politicians and other operatives of this corrupt system. Clinton has built her “unaccountable money” pillar on this well-worn tradition, and nothing more. Current disclosure laws are certainly inadequate. But this is because Congress is now too mired in systemic corruption, and the FEC too deadlocked, to enact even tepid and marginal reforms necessary to make disclosure even potentially more effective.
Clinton surely knows the Supreme Court’s historic, consistent, and virtually unanimous, rulings make clear that there is no need for a constitutional amendment to require full disclosure of currently “unaccountable” or “dark” money. She must have spent some tiny fraction of what has been projected to be an over $2 billion campaign to do some elementary initial research and strategy development about one of her expensive campaign’s four basic policy pillars – which she offers as her reason for running. Her issues team must have advised her to use the hypothetical “if” when mentioning an amendment because they know that an amendment is not necessary to accomplish the limited Clinton disclosure agenda. Hypothetical mention of an amendment does helps obfuscate the limited nature of her agenda. Besides, mentioning the Constitution makes her proposal sound more important. Amendment advocacy, however hypothetical in the case of the “unaccountable money” pillar, does help distract constituents’ political energies to futile pursuits, while also deflecting responsibility to others. This is the strategy that has worked for Democrats on the corruption issue.
The rush to enlist Clinton in their cause by the Democrats’ professional activist allies who have committed themselves to an amendment approach suggests that they either do not know, or do not care, that no amendment is necessary to achieve the mostly useless “accountability” for money in politics that Clinton supports. Clinging to their futile amendment approach such activists mistakenly insist there is “no question that an amendment will be needed.” They do not know or care that it would be a counter-productive waste of time to confirm, by constitutional amendment, the validity of general powers of Congress which have never been seriously questioned on constitutional grounds and only recently exalted by the defender of plutocracy himself, Chief Justice Roberts. Presumably at the behest of such mistaken activists, Bernie Sanders has proposed an amendment that does include such a provision that risks not just wasteful but also counterproductive results.
Given the uninformed quality of the constitutional amendments that have been proposed on this subject by Democrats and their professional activist allies, one can easily imagine that an amendment for this purpose, although unnecessary, could well do more harm than good. The close parsing by a hostile Roberts Court of any particular new constitutional text on this subject could be turned on its head to reduce Congress’ current unrestricted authority to mandate all the disclosure of money in politics they may desire.
Clinton’s mention of the amendment should be no surprise. The constitutional amendment idea has been used as a theatrical prop to give cover to Democrats who are mired in the corrupt system as deeply as Republicans. Republicans embrace plutocracy as some surreal 21st century manifestation of the founders concept of “freedom of speech,” a notion formed long before there was a mass broadcast media to be bought for the political propaganda of marketing specialists. Accepting the Republican’s game, Democrats misleadingly propagate the idea that a constitutional amendment is the sole means by which they could limit money in politics. The resulting stalemate from this diversion absolves Democrats’ failure to advance far more effective and available legislative measures. By such deceit about their support for a futile amendment, a majority of Senate Democrats in the 113th Congress were empowered to vote on behalf of Wall Street in December 2014 to increase, by an order of magnitude, the money that plutocrats can give to buy political parties. Democratic support for the “CRomnibus” Act betrayed the notion that Democrats’ professed commitment to “campaign finance reform” meant that they would seek laws mandating less, not considerably more, money in politics. But the betrayal met with little, if any, protest from their activist allies who keep their eyes safely diverted to the futile amendment approach that would not even have stopped Congress from increasing money in politics as they did in 2014 even if it had been adopted.
Amendment advocacy has served to divert attention from corrupt Democrats for five years. The eventual, and inevitable, collapse, on September 11, 2014, of the Democrats anti-”Citizens United” constitutional amendment theatrics caused those professional activists who got the memo to pivot to a new advertising slogan for 2015. Their new advertising campaign promotes disclosure of “Dark Money,” while attempting to make that slogan sound even worse than their “Citizens United” soundbite. This latest piecemeal fad by non-profit fundraisers for what is actually a much reduced new demand ignores Justice Elena Kagan’s koanic axiom: “Simple disclosure fails to prevent shady dealing…. So the State remains afflicted with corruption.” But it serves Clinton’s straddle between disclosure and amendment.
The recent solicitations from political non-profits have reduced expectations so far as to ask that you send them money to help eliminate Dark Money electioneering by government contractors. This is a reform Obama could accomplish on his own, as a matter of seeing that the law are executed, and should have long ago when the subject first arose in 2011. The activists scrambled on board after the New York Times recently approved this approach. This reform would, they say, “unmask major corporate political donors with a simple executive order.” Of all the plutocrats and their corporate agents who make political investments, this reform would only reach the subset of government contractors. Instead of demanding mere disclosure of political investments from government contractors, activists should at the very least demand policies for this subset that would totally abolish political kickbacks from the procurement system. Their demand should be for strengthening and robust enforcement of — while disqualifying any federal contractor that “directly or indirectly … make[s] any contribution …to any person for any political purpose or use” in violation of — 2 U.S. Code § 441c (“Contributions by government contractors”). Demanding mere disclosure in this context, as it usually does, serves to divert attention from more meaningful reform.
Even this anti-corruption best-practice no-brainer for disclosure, let alone disqualifying firms with a history of conflict of interest electioneering expenditures, has been too much for a Democratic President. Obama uses highly contingent and distancing language whenever he mentions money in politics, such as his statement (emphasis added) about: the “need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn’t revisit it). Even if the amendment process falls short, it can shine a spotlight on the super-PAC phenomenon and help apply pressure for change.”
The multiple italicized contingencies Obama employed indicate that he understood an amendment to be little more than political theatrics. By mentioning Citizens United, not Buckley, and Super-PACs instead of the whole corrupt system, he slices and dices the problem into its manageable but piecemeal soundbites. As a former constitutional law lecturer and record-setting fundraiser, Obama must know that the independent corporate electioneering legalized by Citizens United had very little to do with Super-Pacs, which are overwhelmingly funded by a handful of rich individuals and their non-profit proxies, with very little (only 12%) coming from for-profit corporations. Moreover Super-Pacs already have adequate spotlights on them from a largely outraged public. If in any event the “amendment process” is expected by him to “fall short,” then exactly what is the “change” that Pres. Obama believes can be obtained by “pressure” that might arise from this failure?
Failure due to misdirection usually depletes energy, causes frustration, and alienates voters, which only relieves the “pressure” on politicians. But Obama presumably knows that. His latest tepid statement, sounding like a bystander to the process of policy making, was that he would “love to see some constitutional process that would allow us to actually regulate campaign spending the way we used to, and maybe even improve it.” This could mean almost anything while committing Obama to nothing. One suspects that Obama’s “love” will not give birth to any effective strategy; nor will Clinton.
By mentioning a constitutional amendment without endorsing anything specific Clinton is doing little more than what Obama and his party has done. In formulating her disclosure pillar, Clinton adopted similar language to, while cleverly promising considerably less than, the commitment made in the 2012 Democratic Party platform: “We support campaign finance reform, by constitutional amendment if necessary.” The rubric of “campaign finance reform” could include disclosure of “unaccountable” money as one tactic. But that would need to be accompanied by a more comprehensive legislative package to accomplish any actual “reform.”
By mentioning a constitutional amendment in this context, although the inadequacy of disclosure laws has nothing to do with the text of the Constitution, Clinton not only blows the dog-whistle for those diverted to that futile approach by professional activists for the past five years, but also prepares a convenient exit for herself from even the truncated “dark money” issue. As one commenter observed, she can “endorse the concept without too many expectations about personally making an amendment happen.” A president has no formal role in adopting an amendment so it serves to shift responsibility for the issue away from her, as it has done for Obama.
Clinton should be asked to disclose her legislative plan, since in fact no amendment is necessary, whether to force disclosures of money in politics, or to enact far more robust prohibitions than any amount of disclosure could possibly accomplish. It is those other, strategic legislative solutions for banning money from politics, such as strengthened conflict of interest recusal rules, and Exceptions Clause or Eleventh Amendment jurisdiction-stripping, that Clinton, along with the Democratic Party, can be safely expected to avoid at all costs.
Democrats using effective strategy to get money out of politics would be even less likely than landing a gyrocopter on the White House lawn by a “showman patriot” would dramatize the issue effectively in the complicit mass media. The Wall Street masters would not consent to any effective strategy to restrain their plutocracy.
Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation.