Joe Biden's Record On Citizens United

Derek Cressman

Joe Biden is running for president the same way every major party nominee has before him, by raising as much money as he legally can. This has led some voters to wonder if he is truly committed to changing our campaign finance system, when he might win by using the current system. Would he really fight to overturn Citizens United and change the rules by which he got elected? It’s a fair question to ask of every incumbent. In the case of Joe Biden, there’s a lengthy record to examine. Perhaps most striking, Biden has been supporting a constitutional amendment that would overturn the Citizens United ruling long before the Citizens United ruling even existed.

As you may know, in 2010 the United States Supreme Court struck down key provisions of the McCain-Feingold reform law, which had banned corporate and labor contributions to outside electioneering groups. In the ruling, the Robert’s Court held that unlimited campaign spending was a form of free speech and that it was legally impossible for “independent” spending to corrupt a candidate.

But, the Citizens United ruling wasn’t the first time the Supreme Court concocted such doctrine out of thin air. In the 1976 case Buckley v. Valeo, the Supreme Court struck down major portions of the reform law that Congress had passed in the wake of corruption revealed during Richard Nixon’s Watergate hearings. It was Buckley where the court first decided that it would treat paid speech with the same constitutional protections as free speech.

In the 1980s, Senator Earnest Hollings from South Carolina began a long campaign to pass a constitutional amendment that would have overturned the Buckley ruling and allow Congress and the states to set mandatory limits on campaign spending and contributions. Had this amendment passed, the Citizens United ruling would never have been possible.

It was a lonely fight in the U.S. Senate as at the time most reform organizations were saying it would be “too hard” to pass such an amendment, noting that it might take as long as twenty years. Had the country taken up that fight in 1980, we’d maybe have it done by now. But we didn’t. Undeterred, Senator Hollings toiled along mostly by himself.

Starting in 1997, I began working on democracy issues for the first national reform group willing to champion Senator Hollings cause, the U.S Public Interest Research Group. Back then, the rules of the US Senate allowed any senator to offer amendments during the floor debate of a constitutional amendment. So, whenever Mitch McConnell scheduled a vote on a constitutional amendment to ban burning flags or allowing prayer in schools, Senator Hollings was there on the Senate floor with his own campaign finance amendment to whip out of his pocket and demand an immediate debate and vote. Watching those impromptu debates unfold several times in the late 1990s, I noticed just a few Democratic Senators willing to drop what they were doing and rush to the Senate floor to speak on behalf of the Hollings Amendment to limit campaign spending. Those champions included Arlen Specter, Tom Daschle, and Joe Biden.

I distinctly remember one speech that Biden gave on the floor of the U.S. Senate on March 13, 1997, where he told a story about his first personal interaction with big money in politics. “Toward the end of my first campaign, when I was 29 years old, I had no money, didn’t have a thing,” Biden recalled. “About 10 days before the election, I get a phone call from a group of men I never heard from before in an area of my state … where we used to only ride through and say ‘My god, look at the size of those houses.

“We went out to this place they call ‘the hunt country’ in my area. You know it. You know some of the people. I was just so flattered they invited me. I was thinking 10 days. My brother, who is 6 years younger than me, was my campaign finance chairman. …. Jimmy says, while driving me out there, ‘You know Joe, we got a call from the radio stations. If tomorrow we don’t have the check for next week, we’re off the air.’ Now, like anybody who is running for office, you pour your heart, your soul, everything into this….So I was sitting there and I was within a point, according to the polls, of pulling off at that time, that year, what was viewed as the upset of the year.”

Biden then described how quid pro quo agreements to swap votes in exchange for contributions rarely happen and unlike the Supreme Court’s naïve view aren’t really how money corrupts our political process. ”They came from wealthy families with a lot of money, and they are decent guys,” he recounted. “One guy looks at me and says, ‘Joe, can you tell us your position on capital gains?’ … I knew the right answer. Capital gains had not been an issue in the campaign. I had never spoken out about capital gains. No one had talked about it, but I am not stupid. I was sitting there—and this is the God’s truth—I was sitting in that room seeing what I worked for for two years about to go down the drain because I don’t have $20,000 to keep my radio ads on the air…. I sat there, and I don’t’ know why I did it—not because I am so honorable and brave or anything—I just blurted out, ‘I don’t think we have to change the capital grains structure.’ That was the end of the conversation. Everybody was very polite to me … They said, ‘Joe, lots of luck in your senior year.’ I got up and left. I didn’t raise any money from them.”

Biden not only spoke on behalf of a constitutional amendment to get big money out of politics, he voted for it every time he had a chance to. “The Supreme Court made a supremely bad and, I believe, supremely wrong decision,” he explained. “By saying that Congress shall make no law abridging the freedom to write a check, the Court is saying that Congress cannot take the responsible step of limiting how much money politicians can spend in trying to get elected. And we have to start putting limits on this because money is just permeating the system.”

Biden also voted for incremental reform, such as the McCain-Feingold law that was eventually gutted by the Court in Citizens United. In doing, he said, “I am reminded of that person who once said, ‘You know, moderate reform is like moderate chastity.’ That is about what we are getting here with this legislation.”

Joe Biden didn’t only support other reform proposals; he introduced his own. As he mentioned often in his presidential campaign, he introduced that would have candidates receive 100% of their campaign funds from public financing. Reasonable people can debate the mechanics of such a plan (like whether Libertarian, Green Party, and Kanye West style candidates get the same amount as Democrats and Republicans.) But, you nobody can call it moderate or weak. It’s arguably the most radical campaign finance proposal ever introduced in Congress.

After the Citizens United ruling highlighted the crucial flaws in Buckley’s logic, most national reform organizations took up the cause of a constitutional amendment as did many senators, including Tom Udall and Bernie Sanders. Sander’s 2016 presidential campaign turned the issue into a mainstream one that every candidate was expected to have a position on. But Joe Biden was on board long before any of that. Biden and Bernie Sanders only served a few years together in the Senate and his track record on issues like heath care and banking reform is considerably more moderate than Sanders. But Biden’s track record on campaign reform over his entire congressional career is comparably strong as Sanders and stronger than some more notable reformers such as Russ Feingold or John McCain.

Presidents play no formal role in amending the Constitution. That’s up to the Congress and the States. But having a president elevate an issue helps put in on the national agenda, and Biden has said he would do that. Moreover, his nominees to the Supreme Court are likely to take views opposing the legal doctrine that money equals free speech, as have the appointees of Barack Obama and Bill Clinton.

Past performance is no guarantee of future results, but Biden has a long and deep track record of raising money for his campaigns while simultaneously pushing vigorous reforms to reduce the role of big money in politics.

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