Now that the Occupy Wall Street protesters have been driven from many of their encampments, I have an unusual suggestion for how they should next deploy their considerable energies: work across the nation for a constitutional amendment requiring Congress to regulate the expenditure of private money on elections.
Let me connect the dots. The heart of the protests is a lament about widening income inequality in the U.S., brought about, in part, by a government that seems to favor disproportionately wealthy interests. The Occupiers have focused their outrage on the bailout of banks that reaped huge profits on mortgage-backed securities and are now profitable again, while millions of homeowners have been foreclosed upon or lost their jobs.
The best antidote to this imbalance of income and influence would be to greatly reduce the role of private funding in our elections. Nothing is more empowering to the well-heeled -- corporations, unions, lobbyists, political-action committees, trade associations and bundlers -- than our political leaders’ need to come to them hat in hand for the money to get elected.
Although the event has largely faded from memory, in 1974, in the wake of the national shame over Watergate, Congress established meaningful limits not only on campaign donations but also on the expenditure of private funds in an election. A loose assortment of odd bedfellows, including the Conservative Party Senator James Buckley of New York and the American Civil Liberties Union, protested the laws as a violation of the First Amendment right of free expression.
Money as Speech
While equating spending money with speech might strike many as implausible at first blush, the argument prevailed in Buckley v. Valeo (which I have called the 20th century equivalent of the Dred Scott decision of 1857, which exempted people of African ancestry from the rights of U.S. citizens.)
Since Buckley, an increasingly conservative U.S. Supreme Court has repeatedly struck down on First Amendment grounds efforts to curb private spending on elections. Last year, in the Citizens United decision, the court ruled that despite a longstanding ban on contributions to political campaigns by corporations and unions -- because, after all, such entities aren’t voters -- they could now contribute as much as they liked as long as the expenditures weren’t made in coordination with a candidate.
In reaching this result, the court overruled a number of its own decisions, including one as recent as 2004 that had upheld parts of the McCain-Feingold campaign-finance reform legislation. This year, the court invalidated an Arizona law that sought to counterbalance funding inequities by giving public financing to candidates in proportion to the privately financed spending of their opponents. This too, the court said, violated free speech.
Yet the Supreme Court has made no effort to address the inherent conflict of its approach to the First Amendment with other constitutional principles. The bedrock of our democracy is embodied in the most famous line of the Declaration of Independence, “All men are created equal.” Our belief in the equal dignity and value of every human being has led to the fundamental precept of one person, one vote -- a tangible recognition that each citizen deserves an equal say in who governs her or him.
By treating money as an analog for speech, the court’s post-Buckley jurisprudence has figuratively allowed the rich to speak through microphones while the poor can barely whisper, and tolerates a situation in which the voices of contributors are amplified to the point that they drown out the opinions of mere voters. I have never understood how permitting the wealthy so much greater influence over the political process can be squared with the vision of equality on which the country was founded.
As the limits on spending have eroded, campaigns have grown exponentially more expensive -- President Barack Obama raised and spent $750 million in 2008 and the number may be closer to $1 billion next year. This creates an appetite for political money that naturally can be best fed by the rich. Only 0.5 percent of Americans contributed $200 or more during the last general election cycle. Their generosity made up 82 percent of itemized contributions.
Nor should it be surprising that private contributions have grown in lockstep with income inequality: Our politicians are increasingly dependent on those who have the most and are accordingly reluctant to bite the hand that feeds them.
In recent polling, for example, almost three-quarters of Americans favored raising taxes on millionaires. Yet any such proposal has been consistently blocked in Congress, despite the overwhelming popular support for the idea.
Unfortunately, nothing less than a constitutional amendment is likely to reverse the situation. For now, the court’s conservative majority is firmly entrenched. And even were the court to become more moderate, with the replacement of one of the conservative justices, the principle of stare decisis, of respect for prior decisions, would mean that any effort to erase the damage done since Buckley would necessarily be incremental.
As for the Occupy Wall Street movement, it has been criticized by some for not having a realistic agenda, even though polling shows that millions of Americans, including me, are sympathetic to the basic message of the protests, if not the violent engagements with police that have occurred in Oakland, California, and elsewhere.
So here is my suggestion for how the Occupiers can rally around a single goal and reinvigorate their movement. The Constitution can be amended by a two-thirds vote of each house of Congress, followed by ratification by three-fourths of the states. The demonstrators should head for the public spaces in Washington where protests have long been tolerated and demand that Congress amend the Constitution to change our campaign-finance system.
Meanwhile, those in tents across the nation should start going door to door with petitions, visiting legislators and building alliances with good-government groups, all in service to a proposed amendment that might read something like this: “The Congress and the States shall regulate the direct and indirect expenditure of private funds on the electoral process in order to ensure that no group, entity or individual exercises unequal influence on an election by those means.”
It would be an uphill fight, of course, because passage of the amendment would mean convincing incumbents across the country to turn their backs on the system that put them in office. On the other hand, the expenditure limits that became law in 1974 passed by a two-thirds majority of each house of Congress, after President Gerald Ford’s veto.
And even if the amendment movement gains slowly, it will allow the Occupy adherents to press together toward a single intelligible goal, one that exploits the widespread loathing of the toxic effects of our current campaign-funding system and the lethal mixture of money and politics.
Most important, it will demonstrate that there is a political alternative to chagrined acceptance of the Supreme Court’s edicts and move the debate from courtrooms to the town halls and legislative chambers where the will of the people is supposed to be done.
(Scott Turow, a lawyer, is the author, most recently, of the novel “Innocent.” The opinions expressed are his own.)
To contact the writer of this article: Scott Turow at Scott@scottturow.com.
To contact the editor responsible for this story: Max Berley at firstname.lastname@example.org.