You may have noticed that it’s endorsement season here at the Star Tribune Editorial Board. Frankly, it’s been a trifle disappointing.
For weeks political candidates have paraded in for screening interviews. And if by chance you’ve seen any political advertising lately, you know what a colorful cast of moustache-twirling villains we’d been led to expect.
Sleazy. Shady. Secretive as Bigfoot and “all Washington now.” And when they aren’t busy getting rich off the opioid crisis they’re covering up sexual harassment — and so on.
Part of me wishes the real-life political pirates actually were that interesting. But I suppose it’s the good news that the attack ad caricatures of those who seek high office really are as asinine as the average voter suspects.
The bad news is that, while our office seekers aren’t guilty of many of the things the ads allege — they are guilty of the ads themselves, which says plenty about how much respect for the people is common in the political class.
How stupid do they think we are? The worst part is that many of them, with good intentions, think we’re naive enough to believe, as they apparently do, that the root of the problem is that politicians just don’t have enough power.
That’s the impression one gets from the chorus of calls for sweeping new controls on money in politics. One hears them mainly on the Democratic side. Almost unanimously, progressive candidates make clear their desire to overturn “Citizens United” — the hated 2010 U.S. Supreme Court decision that, the story goes, set loose the corrupting hurricane of special interest dollars at the core of our political dysfunction.
In Citizens United, the court struck down as unconstitutional most limits on independent election spending (even by corporations and unions) that is not “coordinated” with candidates or parties.
It’s painfully hard to defend anything about our nasty and moronic campaign practices today. But it hardly sounds like a cure to give the very institutions and factions that have produced this ugly mess vastly more authority to control and restrict political life.
That is what “getting money out of politics” and “overturning Citizens United” would mean.
To be sure, for the moment, while they build political momentum for that supposed total solution, campaign finance reformers support more measured and sensible steps — particularly broader disclosure. But the court and Citizens United are no obstacle to more disclosure. Politics is the obstacle.
Meanwhile, several versions of a constitutional amendment to overturn Citizens United have been drafted in recent years. It’s worth considering what we’re being urged to add to the U.S. Constitution.
The Democracy for All amendment, a version introduced in the House and Senate in 2017 with 180 cosponsors (including Minnesota Democrats in both chambers), majestically provides that “Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.”
It adds that lawmakers may prohibit election spending by “artificial entities” like corporations (a key concern of many Citizens United critics).
And then the amendment adds: “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.”
That last bit is worth noticing. The authors of these amendments recognize a need to spell out that these new constitutional arrangements are not actually intended to abolish freedom of the press. That’s a measure of the vast new powers being created here. Apparently, except where freedom is specifically reserved (to whoever ends up defined as “the press”) the right to make oneself heard about elections would henceforth become a privilege government could “limit” as it saw fit.
It’s tempting to suppose that such a radical departure from American free speech norms must be more symbolic than serious, and anyway would never survive the grueling process required to ratify an amendment.
But if the era of Donald Trump should have taught Americans anything, it’s that we’d better not be too sure we know what is possible and what is not — or that we can be certain who might end up defining and wielding any new unbounded powers we give to politicians.
Some facts should also be kept in mind.
Although many are predicting record spending this year for an off-year election (time will tell), campaign watchdog OpenSecrets.org reported last winter that Citizens United has not in fact produced a new flood of money into politics. Since 2010, “there has been no growth at all in the overall amount spent in congressional races when adjusted for inflation,” the group reported. And in presidential campaigns real spending “also has declined.”
What mainly has changed is the growing portion of political spending that is being done by independent groups — often financed by wealthy individuals — as opposed to candidates themselves or political parties. Citizens United has something to do with that, but largely because of the way it interacts with restrictions courts have let stand on fundraising and spending by parties and campaigns.
Meanwhile, as noted, nothing in Citizens United or other court rulings prevents Congress or states from requiring more robust disclosure, which is badly needed, especially from independent “issue groups” that claim not to be primarily engaged in politics.
Yet even though our politicians can’t muster the backbone and integrity to use powers they already have to impose more disclosure, some think it’s only more power they need to become virtuous.
Democratic congressional candidate Dean Phillips in Minnesota’s Third District, perhaps this year’s most ardent critic of political cash (at least until announcing in recent days that he’s lending his campaign $1.3 million of his own money), likes to say that America’s Constitution “anticipated a president like Donald Trump” but did not anticipate such a corrupt and cowardly Congress as we have today.
Well, sure it did. America’s framers anticipated that government would always be led by flawed, self-interested human beings. Their answer was to limit the powers of government, not to limit political debate.
“The First Amendment is often inconvenient,” wrote retired U.S. Supreme Court Justice Anthony Kennedy, author of the Citizens United ruling. Kennedy, as we were reminded by the recent brawl over his replacement, was a hero to progressives when his libertarian leanings led him to champion abortion rights and gay rights and marriage rights. His challenging defense of political speech rights should have some admirers, too.
“When the [government] seeks to … shape and control political doctrine,” Kennedy wrote, “… the First Amendment gives substantial protection. … In a free society the State is directed by political doctrine, not the other way around.”
D.J. Tice is at Doug.Tice@startribune.com.