Clinton’s shift on campaign finance and why we need a 28th Amendment

On Tuesday, presidential candidate Hillary Clinton issued a set of proposals to reform our nation’s campaign finance system which included a call for a constitutional amendment to overturn the Supreme Court’s Citizen United ruling and related rulings and to allow for overall spending limits in our elections.  This marks a significant shift from Clinton’s prior statement on April 14, 2015, in which she qualified this call by saying: “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.”  In subsequent statements, she has reiterated this call for an amendment, if necessary.  This shift in Clinton’s campaign platform demonstrates the growing power of the movement for a 28^th Amendment to reclaim our democracy. 

The Supreme Court’s ruling in Citizens United v. FEC more than five years ago swept away longstanding precedent barring corporate money in our elections and led to today’s explosion of outside spending in our political process.  The ruling also sparked a new movement for a constitutional amendment to end the big money dominance of our elections and to restore democracy to ‘we the people.’  Since the ruling, sixteen states and more than 650 cities and towns across the country have issued the call for this amendment with broad support from Americans across the political spectrum.  This support includes 75 percent of the voters in Montana and Colorado, the two states thus far to have passed ballot initiatives calling for an amendment, and it includes more than 130 Republican officials throughout the nation.  Clinton now joins presidential candidates Sen. Lindsey Graham (R-S.C.) and Sen. Bernie Sanders (I-Vt.) who have each called for an amendment to overturn the Citizens United decision.

{mosads}Some opponents of the amendment movement argue that an amendment is not necessary.  Rather, they argue that a voluntary system of public funding of elections will suffice.  But, as important a reform as public financing is, it will not fully address the continued threat posed by today’s regime of unlimited campaign spending.  In the current landscape of Supreme Court jurisprudence on campaign finance, any system of public financing is now threatened by the targeted and unlimited spending of outside groups. 

As campaign finance data now clearly shows, the Court’s Citizens United ruling — and the DC Circuit Court of Appeal’s SpeechNow.org v. FEC ruling applying Citizens United to SuperPACs — unleashed a new torrent of outside spending by big money forces.

Model public funding laws passed in Arizona, Connecticut, and Maine for state legislative races have sought to address such outside spending by ensuring that candidates participating in their public funding systems could receive additional matching public funds. However, in 2011, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the Supreme Court struck down that key matching funds provision of Arizona’s public campaign financing law on the grounds that it violated the First Amendment.  In light of the ruling, Maine repealed the matching funds provision of its public financing law the following year.  As a result of the loss of the matching funds provision, these systems are now vulnerable to a substantial decrease in the number of candidates volunteering to participate and forgo private campaign funds.

Further, without overall limits on campaign spending, including limits on the spending by outside groups, the corrupting influence of such expenditures undermines the effectiveness of a public funding system even when all candidates for a particular office choose to participate in the system.  Take, for example, the 2014 governor’s race in Connecticut.  Both major party candidates opted into the state’s public financing system.  And, yet, millions of dollars poured into the state from outside groups seeking to influence the election, with such expenditures exceeding a total of $18 million, far more than the combined amount the candidates received in public funds. 

In this post-Citizens United era, it is increasingly clear that a 28^th Amendment is necessary to end the current regime of unlimited campaign spending and to ensure that other critical reforms, such as small donor public financing of elections, are effective in leveling the playing field for all Americans, regardless of economic status.  With her statement on Tuesday, Clinton recognizes that any comprehensive plan to overhaul our nation’s campaign finance system must include both public financing and a constitutional amendment to defend our democracy.  The question now is how vigorously Clinton and other candidates who share this vision will campaign on this platform.

Bonifaz is co-founder and president of Free Speech For People.