Justice Stevens delivered brief testimony to the Senate Rules Committee, taking no questions. Maybe no exchange with the committee members was needed: he said little that was surprising or required elaboration.  He had made public before his proposed constitutional amendment and the analysis he offered in support of it closely followed his lengthy dissent in Citizens United. As a retired justice, displaying extraordinary energy and commitment, he certainly brings attention to his cause, but he won’t convince many not already in his corner, and the weaknesses in his case will be turned against the project, whatever its merits, of moving a constitutional amendment.

In one sense, the amendment he has written condemns campaign finance regulation to a repetition of the past.  Congress would be empowered to impose limits—“reasonable” limits—on campaign spending. But what in light of the same nagging controversies and divisions is reasonable, and how does he resolve the conflict between legislatures and courts, when the Justices will be back in the game as referees of “reasonableness”?  The constitutional amendment the Justice is promoting leaves open all the standing questions and attempts in lieu of answering them to force a resolution, or the appearance of one.

When asked on a previous occasion whether a specific congressional action would be “reasonable” under the terms of the amendment, he answered with a “might” and a “perhaps,” after he “stared at the text … for a little while.”  This is the problem: a fixed gaze on the text will not yield an answer, and the argument will resume as it has been going on for years.

Behind the amendment is what he has said, in McConnell and  Citizens United, in his book, and now before the Rules Committee, about the flaws of the current Court majority’s jurisprudence.  The government interests he relies on for active campaign finance regulation are varied; his intention is to give a determined legislature plenty of ground to stand on. Other than corruption or its appearance, he has cited an interest equal access to the political process, and in a higher-caliber campaign discourse—“‘improving the quality of the exposition of ideas’ that voters receive.”  Citizens United v. FEC, 558 U.S. 310, 451 n.65 (2010) (Stevens, J., dissenting) (quoting Davis v. FEC, 554 U.S. 724, 751 (2008)).  The question arises again: when chasing these goals, what is it reasonable for Congress to do under the Stevens amendment?

The reasonableness of an action varies, of course, with the difficulty or urgency of a goal.  When the goals are this many, this lofty, this abstract—this hard to achieve—Congress might be expected to take a muscular view of what measures to effect these reforms are “reasonable.”  So what the Justice is proposing is a vague but apparently vast grant of authority to limit spending, all of it contestable under different judgments of reasonableness and guaranteeing that the old, bitter quarrels will continue.

With Larry Lessig’s promotion of a Super PAC to end all Super PACs—“big money for me, and not for thee”—and Justice Stevens’ advocacy of his constitutional amendment, one progressive response to the pressing challenges of campaign finance has come to include the big idea, the bold idea.  But not, in these cases, a good idea.  The strategy of hoping to win an argument by decreeing an end to it cannot succeed in the long run.

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