Not every Senate hearing is worth watching. The senators show up (sometimes) and make statements on what they think about the issue of the day. Some experts testify and the senators leave, still thinking what they thought in the first place.
But in yesterday’s hearing on dark money, some very smart people shared their thoughts about big money’s corrupting influence on our democracy, and what might be done to limit it. Former Supreme Court Justice John Paul Stevens was one of them. Recent Moyers & Company guests Trevor Potter and Norman Ornstein also weighed in. And Senator Ted Cruz gave an energetic defense of unlimited spending — provided that we have instant disclosure, which his party opposes.
Here are five highlights from Wednesday’s hearing that are worth your time.
1. Senator Charles Schumer (D-NY)
The New York senator grabbed a few headlines when he announced that Democrats planned to vote — this year! — on an amendment to the Constitution, sponsored by Senator Tom Udall (D-NM) that would give Congress the ability to regulate campaign spending. [The Hill noted that the amendment is a long shot, given most Republicans' affinity for the Supreme Court's recent campaign finance-related decisions; Paul Waldman wrote that it's good nonetheless to have it on the table: "Perhaps there will be some extraordinary scandal that will bring the issue to everyone’s attention and make the country (or at least Republicans) reconsider whether they want to do something about it."]
Speaking before Schumer, Senator Pat Roberts insisted that campaign spending must be protected as speech under the First Amendment. In his remarks, Schumer took Roberts to task over this point: “I respect my colleague’s fidelity to the First Amendment. But no amendment is absolute. Most of my colleagues on the other side of the aisle support anti-pornography legislation. That’s a limitation on the First Amendment. Most everyone here believes you can’t falsely scream ‘fire’ in a crowded theater. That’s a limitation on the First Amendment.”
Schumer continued, “The First Amendment protection of free speech is part of what makes America great. So is the concept of ‘one person, one vote.’ And when a small group of people — 700, in this case, who are affected by McCutcheon — has so much more power to influence the political process than everybody else, our democracy is at risk.”
2. Retired Supreme Court Justice John Paul Stevens
Justice John Paul Stevens is an advocate for a constitutional amendment. Earlier this month, he told The New York Times: “The voter is less important than the man who provides money to the candidate… It’s really wrong.” In his testimony yesterday, he pointed out that elected officials would lead happier lives if they weren’t compelled to raise thousands of dollars a day for their next reelection campaign. He proposed an amendment that would read: “Neither the First Amendment, nor any provision of this Constitution, shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office or their supporters may spend in election campaigns.”
3. Senator Ted Cruz (R-TX)
Senator Ted Cruz made a counterargument to Schumer and Stevens, contending that campaign finance laws are used to protect incumbents by limiting the ability of citizens to express themselves. “At the end of the day, there are three speakers in a political debate: there are the politicians, there is the media and there are the citizens. Campaign finance reform is about silencing number three, so that the politicians can speak unimpeded.” (He didn’t address the idea that in the current system, some citizens’ wealth entitles them to more speech then others, but…)
Cruz believes that citizens should be allowed to give as much as they want directly to the candidates — no more super PACs — but he broke with the other Republican senator at the hearing, Roberts, by calling for “immediate disclosure.” This would appear to go against Cruz’s previous stance: Last year, he blocked Obama’s nominee for FCC chair over concerns that he might favor the DISCLOSE ACT, which would increase transparency in campaign spending.
4. Norman Ornstein, Resident Scholar, American Enterprise Institute
Norman Ornstein started his testimony by taking Sen. Roberts — defender of unlimited money without disclosure — to task for placing the text of the First Amendment at the front of the room at the start of the hearing. “I read and reread it as I have done so many times. I’m still looking for the word ‘money’ in the First Amendment,” he quipped. Ornstein traced public concern about big money to the 1830s, and followed America’s history of campaign scandals — and the protections Congress legislated because of them — through to today. Citizens United was applied to “take away almost all of those protections, at least going back to 1907,” he says. He offered five things Congress could do, concluding “we have a lot of work and a lot of heavy lifting to do. The next huge scandal is going to bring about a new drive for reform, but before that I’m afraid that things will get a whole lot worse.”
5. Trevor Potter, President and General Counsel, Campaign Legal Center
Trevor Potter, one of the chief architects of the McCain-Feingold Bipartisan Campaign Reform Act and the former chair of the Federal Elections Commission noted that despite the Supreme Court’s dramatic changes to the campaign finance landscape, the FEC has not issued any new rules. He highlighted the trend of increasing opacity from McCain-Feingold to today: “In 2004, the first election under McCain-Feingold, 98 percent of outside groups running campaign ads disclosed their donors. A few years later, that number was down to 34 percent. In absolute dollars — the amount spent on advertising — only 40 percent was disclosed as to source in 2012 by these outside groups.” Potter then pointed out that, in the majority opinion in Citizens United, Justice Anthony Kennedy wrote that disclosure of donations could prevent corruption. “So, Justice Kennedy said the deal was unlimited independent expenditures, but full disclosure of funders,” Potter concluded. “And today, we have only half the deal.”