Fine(d) Bedfellows, Part 2: Where we go from here

This is the second of two articles in a series. Click here for part one.

Last issue, a Sacto Politico study detailed the tens of millions of dollars the “worst of the worst” corporations invest in the U.S. political system each election cycle. These are America’s most heavily fined corporations penalized the last two decades anywhere from a half million dollars to upward of $63 billion.

As one sampling, the article analyzed California’s 53-member delegation to the U.S. House and how during the 2019-20 election cycle it alone accepted $14.6 million from 420 heavily fined parent corporations and subsidiaries. This averaged $278,127 per California House member, with each California House member accepting donations from an average of 11½ corporations fined $1 billion or more.

The piece also reviewed how, despite the serial nature of regulatory and corporate law breaking, some corporations’ giving most likely helped alter legislation and even the size of penalties paid by these corporations.

The piece of good news is polls show more than 80% of voters in both parties support reducing big donor and corporate influence in federal politics. This second part examines a few of the proposed remedies.

But make no mistake. Changing the system won’t happen without great determination from the voting public. That’s because as long as size of a candidate’s war chest is a factor in elections, incumbents won’t readily disarm. This is because as much as they may detest fundraising, they know they have a proven facility for it and thus an inherent advantage over most opponents. Further, the ever-growing political industrial complex needs ever greater funds to feed itself, and like the killer plant in Little Shop of Horrors, if not fed, it will turn on those who oversaw its growth.

H.R. 1

Like last session of Congress, Democrats in the U.S. House this session symbolically dedicated their first bill number – House Resolution 1, or H.R. 1 – to the “For the People Act.” This bill seeks to increase voter access to the ballot box and improve ethics. A third element strengthens a few aspects of campaign finance. This includes attempting to stop coordination between Super PACs and candidates, and establishing additional fundraising transparency, such as by recommending donations made close to an election date be more quickly disclosed publicly.

While any attempt to strengthen campaign finance regulations is welcome, the campaign finance elements of H.R. 1 are incredibly modest and would not change the current major influence of heavily fined corporations.

A similar bill passed the House last session but received no vote in the GOP-controlled Senate. Now that Democrats control both houses of Congress, the chance this modest bill passing has improved, but it will require overcoming the filibuster in the Senate. This means unless the filibuster is removed in the Senate, 10 votes from Republican Senators may be needed to end a filibuster and call a vote.

Rescind Citizens United by Constitutional Amendment

Even if drafters of H.R. 1 wished this legislation to go further, they quickly would be limited by the 2010 Citizens United ruling. This affirmed that political donations are a form of protected free speech and that corporations are individuals with the same right to donate as individual people. Passing anything that touches on these areas likely would be ruled unconstitutional by the conservative majority on the Supreme Court.

Thus the only way to permanently supersede the Citizens United precedent is by enacting a Constitutional Amendment. This requires passing both houses of Congress by a two-thirds vote and then ratification by two-thirds of the states. Or passing individually in two-thirds of states, navigating each state’s voter referendum process.

Members of Congress have proposed a few very limited amendments that would reverse parts of the Citizens United ruling. However, none explicitly ends the treatment of corporations as people (corporate personhood) or equating political donations as a form of 1st Amendment protected speech. This leaves a lot to be interpreted by the Supreme Court, which over the last five decades has largely only undermined campaign finance reform efforts.

The best effort to explicitly overturn Citizens United by amendment has been by the Sacramento-based Move To Amend group and their “We the People” amendment. Established in 2009, Move To Amend attracted 75 co-sponsors to its amendment resolution last session. All were Democrats, and none were U.S. Senators. This session of Congress, the group’s goal is 100 co-sponsors, including a few Republicans.

This would still leave the amendment almost 200 votes shy of passing out of the House, but as a citizens-led effort, one must applaud its slow, determined energy.

That said, if the We the People Amendment were ratified, it would still be a half measure. It would toss out the Citizens United and 1976 Buckley v. Valeo rulings, clearly end corporate personhood, and make clear that political donations are not forms of free speech that cannot be regulated. These are all positives, but left in limbo would be what would replace the current system.

Would the campaign finance system revert to the 2002 McCain-Feingold compromise that was never fully implemented? Would that law be relitigated on other grounds? Would Congress – the benefactors of the status quo – be in charge of creating a new system? And can any group of elected officials be trusted to create a fair, principled system that’s not inherently tilted toward their re-election?

So what a shame it would be to mobilize so many voters in so many states to pass a Constitutional Amendment only to still need another mass mobilization to get Congress to create a highly principled successor system with no loopholes or hidden advantages given to themselves or their corporate patrons.

Comprehensive Constitutional Amendment

Thus it seems recommended for a proposed amendment to go further than the Move To Amend amendment. It should not only end corporate personhood and clearly state political donations aren’t free speech and can be regulated. It should also ban corporate donations outright. The same would apply to banning dark money and outlawing gerrymandering.

The Sacto Politico proposed one such amendment in its very first issue, which was also published in the San Francisco Chronicle. The proposal’s central element would limit all federal candidates to accepting donations from only individuals eligible to vote for them.

This would limit U.S. House candidates to raising money only from eligible voters within their districts, and Senate candidates only from eligible voters in their states. It effectively would also end all donations from PACs, corporations, labor unions, special interests and other rich outside donors. Plus like the original McCain-Feingold bill, outside expenditures meant to sway a race would be banned within a certain length of time prior to the start of voting.

This would return voters to their rightful central place in our representative democracy. Roughly 80% of money would also be eliminated from our elections, allowing more candidates to run who are more interested in public service than dialing for campaign dollars. This in turn would lower the cost of any public-financing system that individual states might chose to create.

Such an amendment effort would require every bit as much citizen mobilization as the Move To Amend effort, but would guarantee a final system not dependent on any portraits in courage from self-interested elected federal officials.

In this way, the financial influence of all corporations – including heavily fined corporations – would be permanently removed from our federal political system.

Of course, voters with a negative “you can’t fight city hall” attitude will say this can never happen. Then again, the same was said about civil rights, electing America’s first black president, and legalizing gay marriage.