As Senate Democrats gear up for their third in a series of public hearings on the state of campaign finance, Capitol Hill can expect another made-for-TV performance that’s long on political theatrics and short on policy.
If last week’s Senate Judiciary Committee hearing is any indication, lawmakers and witnesses testifying Wednesday at the Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights will put on quite a show.
At last week’s hearing, which focused as this week's will on whether Congress should amend the Constitution to permit tighter campaign spending limits, Senate Majority Leader Harry Reid, D-Nev., predictably assailed the billionaire industrialists Charles and David Koch for what he called their “phony organizations.”
Sen. Ted Cruz, R-Texas, countered in ringing tones that the proposed amendment “would give Congress the power to ban books and to ban movies.” He promptly posted his public comments to YouTube in a video titled “Sen. Cruz speaks in opposition to repealing the First Amendment” that has more than 26,000 views.
Sen. Charles E. Schumer, D-N.Y., deplored Cruz’s “overheated rhetoric” and “hyperbole,” but the Texas senator and possible 2016 GOP presidential contender will only have a bigger megaphone this week. He’s the ranking Republican on the subcommittee that’s holding Wednesday’s hearing.
And as Senate Majority Leader Mitch McConnell noted in his rare joint appearance with Reid before the full Judiciary Committee last week, Democrats know full well that a constitutional amendment — which would require approval by two-thirds of both chambers of Congress and three-quarters of state legislatures — is dead on arrival.
“This is a political exercise, and that’s all it is,” McConnell told the Judiciary panel. “The goal here is to stir up one party’s political base so they’ll show up in November, and it’s to do it by complaining loudly about certain Americans exercising their free speech and associational rights, while being perfectly happy that other Americans, those who agree with the sponsors of this amendment, are doing the same thing.”
Indeed, Democrats are as much to blame as Republicans for the triumph of symbolism over substance in the increasingly polarized campaign finance debate. Both sides have staked out positions on either extreme in the long-running dispute over how to balance anti-corruption limits with First Amendment rights.
Having once endorsed full disclosure and even their own constitutional amendment — albeit one more limited than what Democrats now propose — Republicans have mounted a court challenge to one of the few remaining rules left in place, namely the cap on contributions to the political parties. GOP leaders and their conservative allies off Capitol Hill have also launched an aggressive campaign to discredit both the IRS and the Federal Election Commission , and to equate political disclosure with harassment and intimidation.
Democrats, for their part, have embraced an amendment that would dramatically reorder the campaign finance system and raises legitimate constitutional questions. On the surface, the amendment proposed by Sens. Tom Udall, D-N.M., and Michael Bennet, D-Colo., looks simple enough: It would authorize Congress and the states to limit contributions to candidates — something existing campaign finance laws already do.
But the amendment would also empower Congress to limit “the amount of funds that may be spent by, in support of, or in opposition to such candidates.” This flies in the face of the Supreme Court’s landmark 1976 Buckley v. Valeo ruling, which concluded that caps on campaign contributions are constitutional, but that limits on candidate political spending violate the First Amendment.
Lost in the grandstanding by lawmakers on both sides of the aisle is the opportunity to find middle ground on any number of common-sense campaign finance changes that would require no constitutional tinkering.
These include settling tough questions about how aggressively tax-exempt groups may engage in advocacy before they stray into political territory, an area that’s confounded the IRS and where the agency could clearly use some congressional guidance. Congress could also tackle whether the dysfunctional FEC should be overhauled or replaced with a new type of agency that might actually enforce the rules. Or members could work together to free up the state and national political parties to more effectively compete with unregulated outside groups.
Of course, no one expects either Republicans or Democrats to seriously tackle any of these issues. As Election Day approaches, the tit-for-tat over campaign spending versus free speech will only become more politicized. So far, at least, voters aren’t paying much attention. But if and when they ever do, Congress will have two choices: take action on meaningful fixes, or risk paying a political price.
Eliza Newlin Carney is a senior staff writer covering political money and election law for CQ Roll Call.