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Hillary Clinton: We might need a constitutional amendment to get money out of politics

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  1. While campaigning in Iowa on April 14, Hillary Clinton called for getting unaccountable money out of politics "once and for all, even if it takes a constitutional amendment," according to MSNBC's Ari Melber.
  2. Clinton said that fixing our political system, and counteracting the influence of money in it, would be one of the four big fights of her campaign.
  3. The other three — strengthening the economy, helping families, and protecting the country from threats — provided what was our first glimpse into Clinton's 2016 campaign agenda and message.

Clinton is still going to raise a ton of money for 2016

Don't let these comments make you think that Clinton is renouncing big-dollar fundraising. The combined Clinton operation, including her campaign and outside groups supporting her, "is expected to be a $2.5 billion effort," Amy Chozick and Maggie Haberman of the New York Times have reported.

Of course, Clinton has to compete in our existing system of lax campaign finance laws. And she isn't delaying her campaign launch for months so she can keep personally raising huge donations for a Super PAClike Jeb Bush is. (Since she has declared her candidacy, she can only ask for a few thousand dollars from each donor — though the donors can still give pro-Clinton Super PACs unlimited amounts on their own.)

Still, Clinton and her husband's history of big-dollar fundraising from deep-pocketed donors — both for their own campaigns and for their charitable foundation — will leave many skeptical of her newfound commitment to the cause of campaign finance reform.

But at a moment when the party is searching for issues that will mobilize and unite liberal activists, campaign finance reform seems one logical choice. President Barack Obama, for one, told Vox in an exclusive interview that he'd "love to see" a constitutional amendment to reverse the Citizens United v. FEC decision.

What such an amendment might look like

Last fall, Senate Democrats responded to activist enthusiasm on the issue by unanimously backing a constitutional amendment to reform the system. And their proposal — which got no Republican votes — didn't merely reverse the Citizens United v. FEC ruling, but went back decades further.

Since 1976, when the Supreme Court has considered whether certain restrictions on election spending are constitutional it has taken two main things into account. On the one hand there's the First Amendment right to freedom of speech — which the Court believes includes the spending of money on elections — and on the other hand there's a governmental interest in preventing corruption or the appearance of corruption.

The problem, as campaign finance reformers see it, is that for decades the Supreme Court has defined speech too broadly and corruption too narrowly. It has ruled that laws capping how much an individual or group can donate to a particular candidate are acceptable, because they help prevent corruption. However, overall caps on the amount any candidate or corporation spends on elections are unconstitutional, because they muzzle speech without specifically preventing corruption. (The court's narrow definition of "corruption" has consistently been disputed by some justices in the minority.)

So the Democrats' proposed constitutional amendment specifically says that both Congress and state governments can limit the "raising and spending of money" meant "to influence elections." It lists several rationales for doing so — advancing "democratic self-government" and "political equality," and protecting the "integrity" of the political process. However, it only says that "reasonable limits" are acceptable — so if the amendment is ever enacted, there would undoubtedly be court battles over which restrictions are reasonable or unreasonable.

Republicans have argued that this amendment would alter the Bill of Rights for the first time in history. However, the amendment itself wouldn't actually have altered any text in the First Amendment, or the Bill of Rights more generally. Instead, it would have shot down the current Supreme Court majority's interpretation that the First Amendment prevents caps on election spending. Much of this interpretation was laid out in the 1976 case Buckley v. Valeo, and it was expanded on by several more recent Roberts Court rulings. But the interpretation has always been controversial, even within the Court itself — the recent major campaign finance rulings have all been 5 to 4.

The challenges ahead for campaign finance reform

To pass even a law reforming campaign finance, like the 2002 McCain-Feingold law, some bipartisanship is necessary. A constitutional amendment is a much bigger lift — requiring two-thirds approval in the House and Senate, and further approval from 38 states.

And the biggest problem that has dogged campaign finance reform activists is  polarization. The issue has become completely polarized by party, with Republicans overwhelmingly opposed to more restrictions. Indeed, when the proposed constitutional amendment went before the Senate, every Democrat present voted yes and every Republican present voted no. Clinton's support of the issue won't change that key fact — indeed, it may even make Republicans more adamant against the proposal.

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