Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens

Reading retired Supreme Court Justice John Paul Stevens’s new book, Six Amendments: How and Why We Should Change the Constitution, I was reminded of an old Steve Martin routine from his standup days. “First, get a million dollars,” Martin explains in “You Can Be a Millionaire and Never Pay Taxes.” Then if the tax collector comes to your door asking why you didn’t pay taxes on your million dollars, just say, “I forgot.” Just like Martin, Justice Stevens wants to skip all the tough stuff, using his slim volume to offer overly simplistic solutions to some of the country’s most pressing problems, from political gerrymandering to Second Amendment gun rights and campaign finance. I’m afraid it will take much more to cure our nation’s ills.

Let’s consider Justice Stevens’s take on campaign finance. The Supreme Court has been on a long march toward lifting all campaign finance limits, most famously in the Citizens United case, which freed corporate money from its shackles, and most recently in the McCutcheon case (PDF), which dropped limits on the total amount people can donate to federal candidates in a two-year period. These cases have all been 5-4, with the five conservative justices, led by Chief Justice John Roberts, striking down or limiting campaign finance laws and the four liberals, which included Justice Stevens when he was still on the court, protesting that reasonable campaign finance limits can coexist with the First Amendment.

Mercifully, Justice Stevens assures us that he won’t repeat the arguments he made in his somewhat meandering and ineffective 86-page dissent in Citizens United. (He does reveal that Justice David Souter told him he too would have joined the Citizens United dissent had he still been on the court, something consistent with earlier leaks). Justice Stevens instead offers 20 or so pages describing the nature of the dispute followed by his proposed amendment: “Neither the First Amendment nor any other 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 elections.”

Such an amendment is not going to become part of the Constitution anytime soon. Amendments require a two-thirds vote of Congress followed by ratification by three-quarters of the states, or an even more onerous constitutional convention. A Congress in which Republican lawmakers have blocked attempts to fix our broken campaign finance disclosure laws is not going to pass a broad amendment giving Congress and the states huge leeway in writing new campaign finance limits.

Justice Stevens simply offers no path for his “get a million dollars” proposals. If you think a campaign finance fix is hard, imagine going up against the NRA on gun rights and getting supermajorities in Congress and the states. Or imagine getting politicians to get rid of the gerrymandering that put them in office.

But even if we looked past the impossibility of these amendments’ passage, Justice Stevens’s campaign finance proposal is overly simplistic and poorly drafted. It doesn’t let Congress or the states pass whatever campaign finance laws they please, such as laws that impose looser limits on incumbents. Instead, it allows only for “reasonable” limits. The question of reasonableness inevitably would become a judicial one: What makes Justice Stevens think the current Supreme Court, which finds that all of these limits impinge too much on the freedom of speech guaranteed by the First Amendment, would find such limits reasonable under this new (30th?) amendment? Or things could work the other way: Courts in future times could allow any limits on money in politics, even those that might be aimed at, and be successful at, squelching political competition. That could be just as bad, or worse, than what we have now.

Further, this new amendment goes much further than simply overturning Citizens United or McCutcheon. Its provision limiting how much candidates may spend in elections goes directly against the Supreme Court’s 1976 Buckley v. Valeo decision, which held that limits on candidate spending violate the First Amendment. Candidate spending limits implicate different interests; they don’t just prevent corruption. A candidate who raises millions of dollars in tiny donations would be subject to the same limits as a candidate who raises millions of dollars in a couple of donations. It is not clear the law should treat the two cases the same. The change could be defensible, but Justice Stevens does not offer any detailed defense of this change. He also apparently would allow a “limit,” but not a “ban,” on corporate money in elections. That’s not a return to pre-Citizen United days.

Even for those who support reasonable campaign finance regulation and side with the dissenters in these recent cases, there’s a danger to giving the government too much power to set the rules for political competition—something Justice Stevens recognizes in his political gerrymandering chapter but not in proposed campaign finance amendment. Making the progressive case for reversing Citizens United and even Buckley requires deep thought about the path forward. Do we want to let Congress limit all spending? Spending but not contributions? How do we assure robust political debate without allowing money to dominate the electoral and legislative process?

Justice Stephen Breyer has written about such issues, most recently in his McCutcheon dissent, although his remarks about “collective speech” have riled conservative critics. Justice Breyer’s path is not the only one to a revitalized campaign finance jurisprudence—Judge Guido Calabresi also offers one—but it is a start.

In Steve Martin’s millionaire bit, he ends by talking about what happens when the criminal goes before the judge with the “I forgot” defense. For the judge who is incredulous, Martin again offers two simple words: “Excuuuuuse me!” So excuse me for writing such a critical review of nonagenarian Justice Stevens’s book. I hope I’m still around in my 90s and able to read a book, much less write one. But he has done the cause of progressive constitutional change no favors with Six Amendments, which lacks the nuance necessary to defend these ideals.