Overturn Citizens United?

I am developing my thinking on the subject of independent campaign spending by corporations, unions, wealthy individuals and other powerful entities.   I write primarily to start a conversation about Senate Resolution 772. Note, click here for an overview of the current legal limits on campaign spending.

Currently Pending Measures

There are three measures pending before the Massachusetts Legislature that relate generally to independent campaign spending — spending to influence the outcome of elections by direct electioneering communications as opposed to giving to candidate committees. A common example of independent campaign spending would be an organization choosing, without consultation with a candidate, to mail to its members an endorsement of the candidate. An organization could go further and purchase advertisements supporting a candidate.

  • Senate Resolution 772 calls on Congress to initiate the process for passage of a constitutional amendment to restore “fair elections to the people”, presumably by limiting independent spending by powerful interests in the electoral process.    I have not decided what I think about Senate 772.
  • Senate 304 would require better disclosure of independent political spending by corporations and unions — I am a cosponsor of Senate 304 and perceive it to be both sensible and urgent.
  • Senate 305 would require closer shareholder control of corporate campaign spending.   I am also a cosponsor of this bill.  I don’t know enough about corporate governance to be sure that it is well framed.
The Main Question Presented as to Senate 772

Let me say at the outset that I fully recognize the danger of special interest influence in the legislative process.  That is why I personally refuse contributions from lobbyists and political action committees.  I raise most of my campaign funds from the individuals in the district that I serve.

I believe that politicians themselves have the primary responsibility to dispel the perception and the reality of special interest influence.   I work hard to publicly explain my votes and to maintain an ongoing dialog with my constituents.   I listen carefully to my constituents and seek their trust and I reciprocally trust them to listen to what I have to say and recognize that I am trying to do the right thing.   I am not too afraid of special interest money being spent on behalf of potential opponents, because I trust my constituents to sort out the truth.

Given my basic faith in my constituents, I haven’t been sure how to react to the Citizens United case.  In that case, decided two years ago, the Supreme Court overturned important federal campaign rules and several of its own previous decisions.   The specific holding of the case was that the government may not limit expenditures of general corporate funds to influence voter opinions through political communications, provided that the corporation is spending independently, as opposed to donating to a candidate’s committee.   In SpeechNow, decided shortly after Citizens United, the District of Columbia Court of Appeals, often seen as the second highest court in the land, found that Citizens United compelled a further finding that government may not limit corporate or individual contributions to a political action committee that intends only to make independent expenditures (as opposed to contributing to candidate committees).

Some have suggested that these rulings pose a “serious and direct threat to our democracy.”   Massachusetts Senate Resolution 772, which may come to a vote over the next few months, recites this concern and “calls upon the United States Congress to pass and send to the states for ratification a constitutional amendment to restore the First Amendment and fair elections to the people. ”

So, the question is:  Should we be starting a process to amend the constitution to make it lawful for government to limit independent campaign spending by corporations and unions and perhaps wealthy individuals?  Put it another way, do we, the people, feel that we need to be protected by government from hearing the loud voices of powerful private interests — perhaps because we believe we ourselves won’t be able to adequately hear other interests or perhaps because we believe that our elected officials will too often be intimidated and corrupted by the loud voices — or is it enough to require thorough disclosure of the sources of spending so that we and our elected officials can decide on our own what we want to tune out?

The Citizens United  Decision

The decision in Citizens United was a close one, joined in its main holding by only five justices.  Justice Stevens, who had previously authored the Austin  case which was overturned by Citizens United, wrote a blistering dissent, that the other three dissenters joined.   One thing is clear: Citizens United does reverse a considerable body of jurisprudence.  The radical nature of the decision is, in itself, troubling — see for example, these comments by constitutional law authority Larry Tribe.

Some have portrayed the decision as holding that corporations are people.  This framing can support a powerful critique.  The decision, wrong or right, is not so obtuse.  It decides instead that government lacks the power to favor certain kinds of organizations of people in the political process.  The first amendment itself draws no distinctions among organizational forms:  “Congress shall make no law  .  .  .  abridging the freedom of speech, or of the press . . .”

Many have contacted me expressing the concern that corporate wealth will now further tilt the playing field in public debate.    That view has been expressed by academic commentators as well.  “It just strikes me that it is serious imbalance in power. Corporate speech already has a big voice at the table, ” said Elaine Kamarck, a lecturer in public policy at the Kennedy School.  However, all nine of the Supreme Court justices reject the view that government should be in the business of “leveling the playing field.”  Justice Stevens in his dissent stated that previous limitations on corporate contributions were not intended to “equaliz[e] the relative influence of speakers on elections.”  And the majority quoted favorably the Davis case:

Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, §2, and it is a dangerous business for Congress to use the election laws to influence the voters’ choices.

I personally agree that there is no safe way to allow government to decide which speakers or organizations have outsized influence in the political process, I believe that the framers’ faith in voters is well placed.  It is not a naive faith — voters can make mistakes — but it is better to let them err than to allow whomever currently controls the levers of government to decide what the people get to hear.

The Citizens United dissenters agree, but distinguish between concerns about tilt of the process and concerns about corruption of the process. They summarize their argument as follows:

In sum, over the course of the past century Congress has demonstrated a recurrent need to regulate corporate participation in candidate elections to preserve the integrity of the electoral process, prevent corruption, sustain the active, alert responsibility of the individual citizen, protect the expressive interests of shareholders, and preserve the individual citizen’s confidence in government. These understandings provided the combined impetus behind the Tillman Act in 1907, the Taft-Hartley Act in 1947, FECA in 1971 and BCRA in 2002. Continuously for over 100 years, this line of campaign finance reform has been a series of reactions to documented threats to electoral integrity obvious to any voter, posed by large sums of money from corporate or union treasuries. Time and again, we have recognized these realities in approving measures that Congress and the States have taken. None of the cases the majority cites is to the contrary. [ellipses, quotation marks and citations omitted]

Clearly, there is no bright line distinction between tilt and corruption — a very steep tilt can verge into corruption.  The dissent is expressing a willingness to engage in judgment calls about how much tilt is too much tilt and whether corporate spending per se creates unacceptable risk of too much tilt.

The leading case relied on by the dissent is Austin.  In Austin, the Supreme Court held that a Michigan law prohibiting spending by corporations was valid.  The plaintiff seeking the invalidation of the law was the Michigan State Chamber of Commerce, itself a corporation, which wanted to use its general treasury funds to buy advertisements supporting a candidate for state representative.  The Austin court stipulated that “the mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment.”  But the court accepted the state’s defense that “the unique legal and economic characteristics of corporations necessitate some regulation of their political expenditures to avoid corruption or the appearance of corruption.”  It held that:

Michigan’s regulation aims at a different type of corruption [different from the corrupting influence of direct contributions to a candidate]  in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.

The court acknowledged that not all corporations accumulate great wealth, but accepted that “it is the potential for such influence that demands regulation.”

The Citizens United majority overruled Austin, deciding, in effect, that independent campaign spending (by contrast to candidate donations) do not have the potential to corrupt the process. Certainly, this is not literally true, but the majority chooses to create a bright line rule to this effect, radically simplifying the jurisprudence of the first amendment as applied in the electioneering context. Under Citizens United, it is no longer necessary to scrutinize the details of the corporation and its electoral speech — if it is spending independently, it has the right to so.

The Western Tradition case, which the Supreme Court may shortly review, presents a compelling example of the Austin majority’s motivation for limitations on corporate spending.   At issue in Western Tradition is a Montana law limiting corporate spending. The law goes back to the dark days of deep corporate corruption around the turn of the last century.  The Montana Supreme Court refused to overturn the law despite its arguable conflict with Citizens United.  The Montana Supreme Court reviewed the history that motivated voters in 1912 to approve the law against corporate spending, summarizing it as follows:

At that time the State of Montana and its government were operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests. The voters had more than enough of the corrupt practices and heavy-handed influence asserted by the special interests controlling Montana’s political institutions. Bribery of public officials and unlimited campaign spending by the mining interests were commonplace and well known to the public. Referring to W. A. Clark, but describing the general state of affairs in Montana, Mark Twain wrote in 1907 that Clark “is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell.”

With that history in mind, the Montana Supreme Court seeks to avoid the dictate of Citizens United by:

  • distinguishing the Montana law from the federal regulations that the Citizens United court rejected,  suggesting that the federal regulations are more complex and burdensome;
  • distinguishing Montana politics from federal politics,  suggesting that Montana being a small state (population-wise) is more vulnerable to having its political process overwhelmed by outside corporate interests;
  • noting that Montana elects its judges and that judicial integrity is of paramount importance.

It will be interesting to see whether the Citizens United majority chooses to recognize these distinctions or opts to maintain its bright line rule that independent campaign spending is per se incapable of corrupting the political process and therefore may not be limited by government.

The Question Reframed

In considering whether to support S. 772 urging a constitutional amendment, the choice really is between (a) allowing the Citizens United bright line interpretation of the first amendment to stand or (b) seeking to reinstate a regime where courts and electoral regulators make judgment calls about how much independent spending to what ends through what media is acceptable from whom.

Conceivably, Congress or a constitutional convention might come up with a clean rule limiting organizational speech — a rule that, like the Citizens United rule, offers the clarity necessary to avoid burdening political speech with the threat of litigation, but which offers greater protection from overbearing interests. It is hard to imagine a true bright line against all independent electioneering by organizations — that would make it impossible for us, the people, to choose to associate ourselves and create entities to disseminate communications on our behalf.  And it is even harder to imagine an amendment that would limit in a bright line way the electioneering activity of some individuals whose ability to command attention comes from wealth, as against those whose ability to command attention comes from beauty or eloquence.

So, a constitutional amendment is likely to return us to a regime which involves a lot of difficult judgment calls which have elements of arbitrariness.   In the decisions discussed above, a number of distinctions are suggested that might bear on whether independent organizational or individual electioneering should be permissible:

  • The size of the political system involved — big state, small state, small town . . . more or less vulnerable to pernicious, perhaps alien, influence.
  • The political history of the system involved — past history of corruption.
  • The regulatory burden involved in alternatives to direct independent spending (e.g., the complexity of establishing a Political Action Committee).
  • The office at stake — is it judiciary, which might merit special protection.
  • The timing of the spending — how close to an actual election.
  • Whether the advertisements purchased use magic words like “support” or “oppose” a certain candidate.
  • The amount of the spending and volume of communications.
  • The medium involved — broadcast, print, social media.
  • Whether the organizational entity is a for profit entity or a non-profit entity — many advocacy organizations are corporations:
    • Planned Parenthood Advocacy Fund, Inc.
    • Sierra Club
    • Massachusetts Immigrant and Refugee Advocacy Coalition, Inc.
    • Free Speech for People, Inc. (President- Jeffrey T. Clements)
    • Environmental League of Massachusetts, Inc.
    • Health Care for All, Inc.
    • National Association for the Advancement of Colored People
    • Greater Boston Legal Services, Inc.
  • Whether the entity has a single advocacy purpose or a more diffuse mission including advocacy.
  • Whether the organizational entity is a labor organization or a business organization.
  • Whether the organizational entity is a media corporation or a general corporation or a media corporation owned by a general corporation or vice versa.
  • Whether a corporation is publicly traded, privately held or closely held by a family or individual.

Simplicity is generally preferable to complexity — especially so when the ability of us, the people, to determine whether we can lawfully speak is involved.   The Citizens United decision has the virtue of  simplicity:  Under the new simple rules, if you are donating to a candidate, your spending can be limited in a number of ways, but if you are spending independently you are free to do as you please.    The question then is whether the risks of corporate, union and other organizational dominance are so great that we want to be in the business of making those difficult distinctions or whether strengthening disclosure is enough.

And do we trust that, if we do amend the constitution, the additional speech regulatory power we put in place will really be used for good?   Elizabeth Drew writing in the New York Review of Books states:

[T]here are numerous efforts to find ways to overcome the inestimable damage done by Citizens United. Responsible and irresponsible solutions have been proposed. The most popular and most wrongheaded proposal is to amend the First Amendment to allow restrictions on spending in favor of or against a specific candidate. At least a dozen versions of this proposal are floating about, some offered by groups active in political reform such as Common Cause and Public Citizen, and also by individuals—all of whom should know better than to go down this quite dangerous road. The fatal flaw in all such suggestions is the assumption that the forces of good will remain in control of any tinkering with the First Amendment.

And is the damage done by the decision in fact as great as it seems as first glance?   Larry Tribe , writing before the emergence of the super-PAC, made the point that the pre-Citizens-United law made so many complicated distinctions that corporate speech was, in fact, allowed to a great degree.  So the change wrought by the decision might not be so great as imagined.   As an elected official, I certainly perceive that the power of union, corporate and other interests is very great in the legislature.   Most of that power comes from consistent interest advocacy efforts that shape the consciousness of legislators.    It’s hardly clear that more election cycle spending by these interests will change bottom line outcomes for them.  For corporations involved in consumer markets, greater involvement in the electoral process creates great risks — they would generally prefer to remain on good terms with customers of both parties.

Despite sharing concerns about electoral corruption, I am unable to embrace Senate 772 at this time. I’m pretty sure I don’t want to support a call for a constitutional amendment without a much clearer idea of what the amendment might do — how it would preserve the kind of clarity that is necessary to protect free speech and what speech it might choose to limit. But I’m still thinking and I’d really like to hear from folks on the issue.

Senate 304, which would update state campaign disclosure rules so that they cover the new spending permitted by Citizens United, is a clear priority for me.   I’m hopeful that we can make progress on Senate 304 over the months to come.

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

37 replies on “Overturn Citizens United?”

  1. Instead of banning big-dollar donations, a more graceful approach would be provide incentives for small, individual contributions. This is the focus of clean elections movements all over the county. Many reforms aim to create either a matching fund for candidates who forgo large donations.

    I’m really only scratching the surface here, and I’m thrilled that you are looking for more information about this topic. I encourage you to reach out to the Edmon J. Safra Center for Ethics at Harvard. The center’s director, professor Lawrence Lessig, has written an excellent primer on the topic of campaign finance reform in the post-Citizens United world, called One Way Forward, which I cannot recommend highly enough. In it, he writes:

    “Here’s just one example: Imagine a system that rebated the first $50 of tax revenue paid by each of us, in the form of a voucher—call it a “democracy voucher.”39 Voters could allocate that voucher (or any part of it) to any candidate for Congress who agrees to fund his or her campaign only with “democracy vouchers” and contributions from citizens of up to $100 per election. Vouchers not used would get returned to the political party of the voter—or, if the voter is an independent or chooses differently, to some other democracy-supporting fund. At $50 per voter, this system would put at least $7 billion into elections each year, more than three times the total raised in congressional elections in 2010.”

    These classes of reform would be less prone to abuse than selectively limiting the First Amendment. That said, I can’t think of a reason why an amendment couldn’t simply state that First Amendment rights only extend to individuals.

  2. Hi Will:

    Everyone in the United States is entitled to freedom of speech. This includes organizations such as unions and corporations. Free speech is a right in both the United States constitution as well as the Massachusetts constitution written by John Adams. This is a sacred right, and the Supreme Court was right in their decision in Citizens United.

    I agree that there should be full disclosure of all donations to all campaigns, including all PACs and Super PACs. People who donate money (no matter the amount – even $1) to influence public opinion should expect to disclose this fact to the public.

    Organizations like corporations and unions have Boards of Directors who steer these organizations and set policy. Corporate Boards are elected by their shareholders, thus shareholders already have the power to influence the decisions of the corporations by electing different directors from time to time. Unions and other organizations wishing to influence public opinion should also be required to have elected governing boards to enable their membership to change their stewards as needed. This will ensure that no shareholder or member of an organization will be disenfranchised when it comes to corporate or organizational policy.

  3. I am not an attorney nor any other form of legal or constitutional expert. That being said, I think you are naive if you think your constituents can adequately sort through the information. There is too much information which is mostly BS, often distortions if not total misstatements in elections. The most important reason to eliminate excessive money and the targeted special interest money that Citizens United endorses, is to encourge broader participation. I believe in shorter election cycles and increasing the ease of additional parties to fully join the discussion. The consolidation of power in this country is real, as is the consolidation of poverty and powerlessness. Citizens United exemplifies that gap. If we don’t do something, the gap will widen and the consolidation will become more pronounced.

    1. Sure, there is a problem of corporate influence. But I think it is actually unlikely that government intervention will help — remember this is the very same government that many feel is unduly influenced by corporations. I’m generally uncomfortable deciding that Government should have a larger role in deciding what information the voters really should get. And it could be getting worse.

      Sure, we, the people, aren’t perfect. On the other hand, the basic American tradition is that we the people get to make the decisions after a rough and tumble dialog.

  4. Ezra Klein has an exceptionally informative article in the 3/22 New York Review of Books on this subject. He points out that while many people think that what industries do is bribe lawmakers in the sense of giving them money to do things they wouldn’t do otherwise, what really happens is that industries find lawmakers who have a demonstrated record of embracing their view of matters and then assign lobbyists to be in effect unpaid staff members for that lawmaker on that issue. (This dynamic is apparently called “the legislative subsidy”.) The tilt or corruption involved lies in making that lawmaker’s grasp of all aspects of the issue superior to that of the lawmakers on the other side. This makes regulating that money difficult, because when you come down to it, who can be against making lawmakers smarter?? Highly recommended.

    1. Oh, but this is only the tip of the iceberg. Klein merely points to one of the more benign-sounding ways that lobbyists and their clients aggressively distort US lawmaking.

      There are other, far more pernicious ways to do the job. One method: lawmakers themselves actively shake down lobbyists for contributions, and many lobbyists expect this, and join the dance. Listen to this recent This American Life episode, which shows primary-source evidence as well as incredibly narrated insights about how last-minute money bombs spent on targeted attack ads can blow back the momentum of a good challenger candidate. Welcome to the post-Citizen United reality: http://www.thisamericanlife.org/radio-archives/episode/461/take-the-money-and-run-for-office

      Another is that lobbyists like the disgraced Jack Abramoff provide an array of perks to pols and their staffers, like tickets to sporting events and concerts. Abramoff explains this and other techniques on 60 Minutes: http://www.cbsnews.com/video/watch/?id=7387331n

      The solutions are not easy, but before we get serious about hashing these out, we need to get a grip on the details of the myriad ways money produces bad policy.

  5. Thanks for your usual careful analysis. By all means continue sponsoring Senate 304 and 305, I support both.

    As for a Constitutional amendment, most of us haven’t thought about the complexities — we just think, get rid of the steamroller effect of Romney’s current PAC and the like, by whatever means it takes! The unfair influence which huge corporations have over public affairs has been a problem through much of US history, and is now worldwide. The Cloud Minders, David Korten calls the megacorporations — they think they own the planet, and they do.

    I support two ideas to rationalize election spending: 1) shorter election cycles. No primaries OR ADS until June. Parties should take seriously how nauseated we all get with their negative ads going on most of a year. PACs only make it that much worse. The candidates want us to vote, not get turned off to the whole business.
    2) Equal TV air time FREE, or under some equalizing scheme — some good ones have been proposed — for ALL parties, including local and state elections.

    Creating real democracy does take good heads like yours. Please keep on examining elements of it and explaining them to us. Bless you.

  6. Thank you for your thorough analysis. 304 and 305 are good but don’t go far enough. Long before Citizens United, I did not trust the Federal electoral process. Too much lobbying on the part of large corporations, too much influence peddling. Our representatives in Congress spend way too much time on raising funds and shmoozing with their donors rather than getting work done that they were elected for. Citizens United made matters much worse. Since that ruling came out, I have steadfastly refused to donate to any campaign, be it at the local, state, or Federal level. What is my paltry contribution going to do in the face of the Million dollar onslaught from PAC’s? Further, what is my vote going to achieve in the face of foregone decisions made to please lobby X, Y, or Z? Our representatives in Congress work for the wealthy and powerful, not for “we the people.” Finally, the obscene amounts amassed to run political campaigns could be better used alleviating the suffering of the poor, improving education, transportation, health care delivery, and so on. I go to the polls with increasing weariness. Only a constitutional amendment will save us from this utterly regrettable situation. And let the chips fall where they may.

  7. Seems pretty simple – I don’t like the influence of corporations or wealthy individuals in the political process, but even worse than that I don’t like censorship and denial of basic rights guaranteed by the Constitution. As an individual, I have the right to promote my causes. If I wanted to, I could take out an ad on behalf of a product I like, put up a billboard on my front lawn in favor of it, never tell the company that I’m promoting them. What makes support of a political candidate any different than my support of that product? And if I have that right, why not Julian Robertson, Edward Conrad, Eli Publishing, etc (http://www.nytimes.com/interactive/2012/01/31/us/politics/super-pac-donors.html?ref=politics) who created the Romney Super PAC?

    That being said, disclosure is key. When Coke advertises, I know who it is. When the Koch advertises, I want to know who it is. Bravo on Senate 304, 305.

    We live in a free democracy (sort of) and I want to keep it that way. I may not like Citizens United, but I’ll defend it because Free Speech is important.

  8. BTW, If you truly believe that money buys elections, check the facts:
    Election Analysis: In Spite Of Record Spending In 2010, Money Did Not ‘Buy’ House Elections

    Money matters… to a point, under-funded candidates cannot get their message out, so they don’t tend win. In the “real world” politics, David typically does not triumph over Goliath, but in a Goliath v. Goliath fight, it comes back to informed citizens making informed decisions, not how big either candidate’s election fund (plus any super PAC) is.

  9. Fundamentally, Citizens United is a good, not a bad decision. Almost every attempt to limit or curtail campaign financing creates a distortion and a series of loop holes that need to be corrected with yet another law. They also further curtail free political speech, of which donations are a form.

    Individuals, corporations, unions, NGO interest groups, etc., in a democratic republic should be able to assemble or unite freely and without encumbrance in a common cause (or a Common Cause) to contribute to particular political movements, causes or candidates by public assembly, financial contribution and votes.

    My sense is that Sen. Brownsberger is leaning towards fresh air as the best sanitizing agent. Complete, frequent, immediate, public disclosure, widely and easily available to all is the most appropriate way for voter control over public officials and private individual or organizational behavior.

    Officials should be publishing contributor information on a no-less than monthly basis. Corporations, unions and other interest groups should also have to publish their contributions with the same frequency. Individuals likewise, perhaps on some state or Federal register. If we have the technology to bid for obscure items on e-Bay with real-time feedback, we have the technology to instantly and accurately report to the public political contributions from any source.

    If it turns out that public voters don’t appreciate particular contributions or an official’s reaction to contributions reported in public and transparent information, the officials can be voted out at the next opportunity, or under more grievous circumstances, impeached. And the latter can be accomplished through support from ad hoc special interest groups publically and transparently raising unlimited funds (under Citizens United) to “throw the bum(s) out”.

    Failure to report under all circumstances any transaction above a defined amount ($1,000?) should be a felony, aggressively prosecuted.

    Charlie Foskett

    1. Agreed about disclosure. It needs to be clear and rapid and without phony names that obscure who really gave the money!

  10. Great discussion here, prompted by Will’s thoughtful review of the situation. Personally, I agree with Lessig that the pressure to hold a ConCon could force Congress to vote itself to call for one, and that discussing this issue across America will lead to concerted pressure to limit the influence of wealth on elections, and hopefully in the halls of power.

    As corporations (mostly) and unions (perhaps less so) are not run democratically, I have little expectation that the majority of their stakeholders can assert power to influence whether or how their organization’s leadership spends its money in political campaigns. So, I do not favor private financing of elections under the conditions that Citizens United created. So, I tend to favor Lessig’s voucher idea, at least on its face.

    If you are interested in learning of the background of this set of issues, there is a very good “Cliffs Notes” history that someone I met via Lessig’s organizing efforts has put together. She sent her PDF to me and told me to disseminate it as I wished, so I posted it on a Web site I have. Obtain “CORPORATE CONTROL OVER ELECTIONS: SUMMARY OF ISSUES SURROUNDING CITIZENS UNITED V. FEDERAL ELECTION COMMISSION (2010) AND ITS AFTERMATH” by E.W. Rassweiler” here:

    You need that exact URL to find it as I have no links to it anywhere. Enjoy, if that’s your pleasure.

  11. PS – Ms. Rasweiler just informed me that she has put her article online.
    It’s on a set of HTML pages linked through the table of contents. If you pass this content on, that may be the easiest way for people to access it. She provides a link to a print version of the article and a page for leaving comments as well.

    Finally, as you may know, the Supreme Court will review a Montana law that limits corporate money in political campaigns. In a private communication, Ms. Rasweiler noted:

    “I’m carefully watching the Montana case in the Supreme Court. Experts totally disagree on what the Supreme Court response will be. I personally believe that if Montana’s 1912 “Corrupt Practices Act” is overturned, a huge population in Montana and beyond will be outraged; conservative states’ rights advocates will see it as an infringement. It will add fire to the demand for a Constitutional amendment. I suspect the Supreme Court must is quite aware of this possibility, and may therefore simply reverse Citizens United (2010), or parts of it, maybe without explanation, allowing Montana’s law to stand.”

    Whatever the court decides will add fuel to the fire over funding elections.

  12. I am extremely troubled by the effects of the Citizens United decsion. I think that it has made it possible for wealthy individuals and corporations to advertize in ways that were not possible before; the amount of money spent for negative advertizing in the current presidential election cycle demonstrates this. Corporations and the very wealthy (such as the Los Vegas magnate with millions and millions to spend) are not the same as most of us and they shouldn’t be treated the same way. However, the Supreme Court thinks otherwise or rather, the effect of its decision is otherwise.

    Whether a Constitutional Amendment is the way to rectify the situation is a hard question. It’s difficult to pass a Constitutional Amendment and it takes a long time. Other methods suggested will also take time and may not be possible at all. So the question is how to find a way to limit the effects of SuperPAC spending particularly when it is negative.

    1. Judith,

      I understand where you are coming from, but who is “very wealthy”? Just how wealthy do you have to be to lose the right to spend your money? And movie stars are more beautiful than most of us and get a lot of attention that way — should they also be prohibited from speaking out? And just how beautiful do you have to be before we put limits on your speech?


  13. Thank you for the thoughtful discussion here. It is true that many are not aware of the complexity of this issue. My opinions evolve, but I echo the thoughts expressed by Keith Morse, especially regarding Prof Lessig’s voucher idea. I also believe full disclosure is key and support the comments here by Rich Carlson and Charlie Foskett.

    I do not believe that the protection of freedom of speech was meant for large corporations/groups, but I also feel that, as Sen. B pointed out, more clarity is needed before an actual amendment can be supported. We still need structures in place to promote diversity of thought and perspective within our political system.

    Thank you for your continued support of Senate 304 and Senate 305.

  14. Will, thanks for your thoughts.

    I agree, the direction of limiting corporate speech is a slippery slope.

    However, I think the Republican primaries are exposing a system that used to be broken, and is now a disaster. Democracy is really on the line here, and while disclosure will help, it is not the full answer. Right now, for example, the whole world knows who the billionaires are, who are pouring tens of millions into the Republican primary. Their contributions are already known by all, so a disclosure requirement would not make any difference to them.

    Even with a disclosure requirement, the system would be terribly broken and vulnerable to the distortions we are seeing already.

    In that vein, what I think is really important is to clarify that MONEY IS NOT SPEECH. Or more precisely, the act of spending money does not deserve the same protection that speech does. There are many things we can do to express ourselves — whacking someone on the head is one of them. But that act is not protected by the first amendment.

    Similarly, we do not need the act of spending money to be protected by the first amendment. And if it is not, then it can be regulated — both for individuals and corporations. That is where we need to get to.

    1. I understand what you are trying to do, but even if money is not speech, advertising most certainly is. I have a very hard time imagining limitation on money spent on advertising. I don’t think this is a good way to solve the problem. See also my comments to Judith above — as money is not speech, beauty is not wisdom, but both beauty and money can get a lot of attention for one’s thoughts.

  15. Dear Senator Brownsberger.

    I’m a strong supporter of S772, but I wanted to first say that I very much appreciate the thought you’ve put into this issue and that I also respect your hesitancy to support an amendment that addresses free speech rights without seeing the specific language used. That said, I wanted to address a few of your points in your post.

    1. You said: “…do we, the people, feel that we need to be protected by government from hearing the loud voices of powerful private interests…or is it enough to require thorough disclosure of the sources of spending so that we and our elected officials can decide on our own what we want to tune out?”

    I do not believe “protecting people from advertisements” is the central issue here. Like you, I believe, like you, that the American People are intelligent and do not need to be protected from the loud voices that come through via political ads. But, given that a Representative needs on average $1.3 million to get elected and a Senator needs $7.5 million [ http://www.cfinst.org/data/pdf/VitalStats_t1.pdf ], and that congressmen spend 30%-70% of their time in office fundraising [Lessig 2011, Republic Lost, page 138], it’s natural to question to what degree all this time and money biases our lawmakers. I believe that most lawmakers are good people and on the big issues that capture the public’s attention, I think in general they support the will of the voters. But on the smaller issues that are not as much in the public eye and have a well-financed special interest group on only one side of the issue (e.g. cotton subsidies or corporate tax breaks), I think it’s likely that many candidates lean toward supporting the well-financed sides of issues to protect their financial interest. Moreover, with congressmen spending so much time fundraising (Nancy Pelosi for instance went to 400 fundraisers in 2011 [ http://www.npr.org/blogs/money/2012/01/27/145923803/the-friday-podcast-a-former-lobbyist-tells-all ]) one wonders if our representatives even have sufficient time to do their job properly. It would be ok if they spent this time talking to their constituents, but they’re spending most of this time talking only to their wealthiest constituents that can afford the fundraisers and to the multinational corporations that may have a vested interest in the committees that congressman serves on.

    2. You asked “And is the damage done by the decision [to overturn Citizens United] in fact as great as it seems as first glance?”

    Open Secrets reports that comparing the 2006 to the 2010 election, independent expenditures jumped from $68 million to $302 million. In my mind, this is a *huge* jump and at the time of the 2010 election, Citizens United had only been in effect for 8 months. Thus Citizens United may have already had quite a significant effect. [From http://www.opensecrets.org/outsidespending/ ] It will be even more interesting to compare 2008 to 2012.

    Finally, I’d like to share with you a lecture by Lawrence Lessig that I believe does an excellent job outlining the tremendous effect all this money in politics has on our system. [ http://www.youtube.com/watch?v=Ik1AK56FtVc ]. I find that the most disturbing part of the Supreme Court’s Citizens United decision is that it completely dismissed the corrupting (or tilting) effect money can have on politics through independent expenditures without the Court even looking through the wide body of evidence on this subject.

    To summarize, I respect your opinion that amending the constitution to limit free speech requires careful thought and moving too quickly down that path can be risky. On the other hand, after hearing Lessig speak and researching further on my own, I believe the corrupting/tilting effect that money has on politics is so great that big actions are needed to address this issue.

    Best Regards,
    Andy Stein

    1. Thanks, Andy.

      I think you are dead right that we legislators do too often tilt on invisible issues to please powerful interests. But it is very hard to change that. Powerful interests are powerful and find their way into the process a million different ways to influence regulatory decisions.

      I think it is better to work on simplifying things like the pension system and the tax code so that people can actually understand them and legislators will be more accountable. That’s a big part of my personal mission.

  16. I am deeply grateful to all of you who have responded above. I’ve read all of the comments carefully and said a few things in response that appear inline above.

    I want to think more about the Lessig set of ideas on this. Clearly, he is contributing a lot to the conversation. I appreciate the links that people have sent above.

  17. Will, I agree with your priorities- forget about amending the constitution, but enforce transparency. The Republican primary has shown two things: 1. “give them enough rope, and they will hang themselves” 2. As a practical matter, there is no real difference between a candidate’s campaign, and the campaign of an “independent” organization that is set up for the express purpose of supporting said candidate.

    Of course, the best solution is to eliminate the means by which money can be used to sway the electorate. Since we are such a media-oriented society, and I don’t see much chance of this changing in a small number of generations, I hope we can improve universal education in the areas of critical thinking and political history. Thanks for what you do for us, your constituents.

  18. Dear Senator Brownsberger,

    I’d like to understand your position a bit better. Currently, there are limits of $5000 on contributions to individual campaigns. Like the BCRA, this is also a limit on political speech, but the Supreme Court has decided that this limit is Constitutional because it limits corruption and the appearance of corruption. Do you agree that this limit is ok or should it be removed because it restricts speech?

    If you feel that the $5000 candidate contribution limit is ok, then my next question is: do you see a significant difference between a contribution to a candidate and a contribution to a Super PAC? If so, can you explain the practical importance of this difference. Many see almost no difference between contributing to a candidate and contributing to his Super PAC because the Super PAC is often run by close allies and former advisors and “coordination” with the candidate is something that can be extremely difficult to prove.

    I’ll do my best to make it to Tuesday’s discussion in Arlington. And thanks again for taking the time to think carefully about this issue!
    Andy Stein

    1. I’m OK with limiting contributions directly to candidate committees for the reasons you state.

      There are two important distinctions between contributions to a candidate committee and PAC that likes a candidate: (1) The candidate has a little less control over the PAC (in principle none, but I agree that the boundaries are often not well maintained); (2) the candidate has a lot less ability to convert the money in the PAC to his own quasi-personal use. It’s in the second area where the real potential for abuses comes in — campaign money used for life comforts that are only loosely related to political needs.

  19. Will,
    I appreciate the level of understanding you need to negotiate through this matter, but I still harbor a broad sense of apprehension that the details do not mollify. It is possible to lose sight of the forest because of the trees.
    The reason Citizens United is a hot button is because it lends more power to the powerful, period.
    And we need our elected government to keep us from falling off the cliff as they say.
    Our powerful consumer based society and its corporate megahorn mass media has not allowed one clue of an idea of our current challenges, instead insisting that growing our economy is our only task and is the main job of our government.
    Sustainability is pushed way to the back burner. The diminishing natural environment, increases in inequlaity, and dangerous levels of CO2 in the atmosphere are all products of our iconic commercialism. Do we really want to increase our bets on our liberal market brand of capitalism?
    It’s time to get people talking outside the box. Tim Jacksons “Prosperity Without Growth”
    describes economics for a finite planet.

    1. I don’t think we should ever consider regulating speech because we don’t like the gist of the speech as it relates to policy issues.

      But even if would accept that, I don’t blame the failure to limit carbon emissions on corporations. I blame it on the fact that energy use is bound up with everything that we love. Even the most committed environmentalists — and I number myself among them — make choices (mostly air travel) that give them huge carbon footprints compared to the those of the poor, especially the poor in other countries.

  20. Will,

    I really appreciate your thorough consideration of this issue. You are right that we need to be careful when amending the Constitution to limit the rights of anyone – person or corporation. Some of the proposed amendments I’ve seen go way too far and could have huge unintended consequences. However, I would encourage you to support S.772 as a first step in the process of correcting the damage done by the Citizens United decision. As I understand it, S.772 only calls on Congress to work on an amendment “to restore the First Amendment and fair elections to the people” – it does not specify the language for such an amendment. The amendment would require careful scrutiny and many rounds of public debate before it would be satisfactory. But that whole process would not happen unless Massachusetts and other states come out in support of an amendment via bills like S.772.

    If there is a better bill to start the process in Massachusetts – or a proposed amendment with language you can stand behind – then by all means, vote for that one instead… but the process has to start somehow, and soon if the people of our democracy are to stand any chance having their voices heard over the din financed from the deep pockets of large corporations!

    In the meantime, we need to do all we can to keep corporate donations transparent and to allow oversight by shareholders… which is why I applaud you for your cosponsorship of S.304 and 305.

    Given your deep consideration of all of these matters, if S.772 passes and Congress actually begins drafting text for a constitutional amendment, I would heartily nominate you to be on the drafting committee! I believe you would help to ensure that the amendment does its intended job without infringing on anyone’s right to free speech.

    Many thanks,
    Richard Samuels

    1. Thank you for this thoughtful note.

      At the end of the day, I truly believe that the founders said it right when they assembled the constitution and the first ten amendments:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      I wouldn’t change a word of that statement. I think that a constitutional convention for the purpose of amending that language can only do harm.

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