WASHINGTON — A string of Supreme Court decisions has enabled the nation’s wealthiest donors to anonymously contribute unlimited amounts of money to influence elections. Leading the effort to change that is an unlikely volunteer: John Paul Stevens, the 94-year-old retired Supreme Court Justice whose former colleagues helped create the situation.
Instead of playing golf or drinking iced tea on the porch, the court’s former liberal standard-bearer is speaking widely about what he sees as the need to change the Constitution, to restrain the power of wealthy people and groups to overwhelm the political process.
His testimony Wednesday before a Senate panel gave the issue an immediate jolt.
“While money is used to finance speech, money is not speech,” Stevens said in an eight-minute address full of legal arguments and case citations, his first return to the Senate since he was confirmed to the high court in 1975. “After all, campaign funds were used to finance the Watergate burglary.” The message echoes the theme of his latest book.
Senator Chuck Schumer, a New York Democrat and the Senate’s third-ranking member, promised to hold a vote on a constitutional amendment to allow restrictions on campaign spending sometime this year.
Advocates for overhauling the campaign system welcome Stevens’s involvement.
“The most important role he has to play is as a justice who understands the history of the corruption problems in this country, the history of the Supreme Court’s rulings, and why we have to get back to a constructive and realistic approach to campaign finance laws that prevent corruption,” said Fred Wertheimer, founder and president of Democracy 21, a nonprofit organization that supports stricter campaign laws.
But some observers say Stevens has overstepped his retiree role. Josh Blackman, an assistant professor at the South Texas College of Law who has written a book about the court, said Stevens still technically holds “senior status” on the court, meaning he has an office, a staff, and a salary of more than $200,000 from the very court he is criticizing. Unlike other justices who hold senior status, Stevens has chosen not to hear cases.
“I think there’s almost a sense of bitterness that after 30 years on the court, his legacy was not as strong as it could be because his dissents were just that: dissents,” Blackman said.
Stevens’s second and latest book — “Six Amendments: How and Why We Should Change the Constitution” — comes just after the Supreme Court made its latest major ruling on campaign spending.
In that April decision, McCutcheon v. Federal Election Commission, the court struck down overall limits on what individuals can donate to federal political candidates, committees, and parties within a two-year cycle.
Stevens’s concern for the broader issue has been well known. He wrote a stinging dissent in Citizens United, the 2010 decision widely credited with ushering in a new era of unlimited corporate and labor union spending that now also allows millions to be spent anonymously.
His book also calls for amendments limiting individual gun rights, ending the death penalty, outlawing gerrymandered congressional districts, requiring states to enforce federal laws, and removing governments’ immunity from liability.
Unlimited spending from corporations and other groups, Stevens said Wednesday, creates “a risk that successful candidates will pay more attention to the interests of nonvoters who provide them with money than to the interests of the voters who elected them.”
Advocates for overhauling the campaign system are hopeful that Stevens’s involvement can bring the issue a greater sense of urgency.
Republican opponents pushed back, saying Democrats are afraid to “let the marketplace of ideas operate.”
“The Sierra Club has an absolute right to defend their views, as does the NRA,” said Senator Ted Cruz, a Texas Republican. “Money is and has always been used as a critical tool in speech, whether publishing books, putting on events, or broadcasting over the airwaves.”
Stevens’s campaign finance amendment would essentially overturn Citizens United, allowing Congress to set “reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in elections.”
Thirty-three Democratic senators, along with Maine independent Angus King, have signed on to a similar resolution in Congress sponsored by New Mexico Democrat Tom Udall, the same measure Schumer promised on Wednesday to vote on. Senator Edward J. Markey, one of two Massachusetts Democrats to sign on, predicts that over time the issue will draw Republicans.
“In each election year, it’s going to become more clear to voters that there are significant, pernicious effects that Citizens United has had on democracy,” Markey said.
Amending the Constitution is unlikely in the current political climate, where even routine bills get bogged down by partisan battles. A constitutional amendment requires a two-thirds majority in the House and Senate, and ratification by three-fourths of the country’s state legislatures.
Still, advocates for overhauling the system are hopeful that Stevens can bring the issue a greater sense of urgency. They do not expect him to become a grass roots organizer. But he can make the public case with the authority of a justice who was appointed to the court in the aftermath of Watergate, when Republican President Gerald Ford and members of Congress from both parties were eager to pass laws limiting the role of special interests in government.
President Obama made campaign funding a central issue in his campaigns and spoke out strongly against the court’s decisions, but some argue that he has weakened the system by rejecting public financing and turning his political committee into a permanent advocacy organization, a first for a sitting president.
It is unclear if any potential presidential candidates will run on the issue in the 2016 election. So far, only Senator Bernie Sanders, a Vermont independent who would be a long shot if he runs, has indicated that he would campaign heavily against the influence of big donors and corporate interests in politics.
Senator Elizabeth Warren, a Massachusetts Democrat, has said she is not running for president. But her position as a leading liberal voice has made her an important player in her party. The influence of corporate and wealthy donors in the political process is central to her political message, and she has signed on to the measure calling for constitutional amendment.
While some advocates seek a constitutional change, others are pushing for disclosure laws and public financing alternatives while pinning their hopes on a change in the Supreme Court’s ideological balance that will allow a return to greater restrictions on campaign spending.
Richard L. Hasen, a professor of law and political science at the University of California Irvine who specializes in campaign finance law and the Supreme Court, said the amendment is a bad idea. He said most proposed language would either be too weak to withstand a legislative or judicial challenge or too crude to avoid unintentionally limiting other protections on political speech, including books and newspaper editorials.
Stevens said Wednesday that he purposely used the word “reasonable” in his proposed amendment with the intent to protect the press and prevent measures that would give too much protection to incumbents.Noah Bierman can be reached at email@example.com. Follow him on Twitter @noahbierman.