A Constitutional amendment to undo Citizens United
Friday, February 12, 2010 at 01:37PM I inveighed here against the recent US Supreme Court decision in Citizens United but until now had no proposed remedy that I thought might be effective. Appearing on Bill Moyers' Journal, Larry Lessig helped me along by casting a different light on the majority opinion. Based on that, I have drafted a Constitutional amendment to undo Citizens United and provide a solid foundation for broader campaign finance reform that isn't blocked by the money-equals-speech wall the Court has created in this and earlier decisions such as Buckley vs. Vallejo (1976).
My recollection of Lessig's point is this, perhaps with some of my embellishments: The Supreme Court has always been very careful to protect the public reputation of the judicial branch for impartiality and legitimacy, and properly so. Due process requires, they say, that a judge must recuse himself if there is even an appearance that he is biased for or against a litigant. Just last term, they held a West Virginia supreme court judge should have recused himself from a case in which a litigant (Massey Coal Co.) had spent ~$1 million to get him elected. In its various efforts over a century to regulate campaign finance and lobbying, Congress has had exactly the same purpose—to revive and protect its own reputation for integrity and legitimacy. In Citizens United the Court has ruled that, although the Judiciary has inherent power to protect its own integrity, Congress does not. Worse, the Court has now held that it's unconstitutional for Congress and the President not to be essentially for sale to the highest bidder.
My draft amendment is also influenced by Ronald Dworkin who argues here that one of the most basic purposes of the right of free speech is to help "protect democracy," i.e., to protect from corruption and distortion the process by which the People elect their representatives.
Here's my draft:
Section 1: The Congress shall have the power to enact laws protecting the integrity and reputation for legitimacy of the Congress and the Office of President, of every person holding or seeking an elective office of the United States, and of democratic election processes, by providing for the public financing of elections and campaigns and limiting the use of private funds therein to those provided by citizens who are natural persons, by limiting the amounts that each person may contribute or spend for or against candidates, and by requiring public disclosure of such contributions and expenditures.
Section 2: The several States may exercise the same powers to govern elections for offices of the State and its political subdivisions.
Section 3: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
[Please see the revised draft in the March 6, 2010 Update below.]
Skeptic
Via email, here is Don's comment:
One policy problem with Skeptic's proposed Constitutional amendment is that it would allow an incumbent majority in Congress to impose a very low limit on contributions by natural persons but not provide public financing (or only do so in very small amounts). The incumbent party already wins every election, by a huge landslide. Would an incumbent majority vote for even more assurance of re-election? What's wrong with that? The incumbent party is doing a terrific job, isn't it?
I agree with Don that incumbency protection is a problem, but would my proposed amendment likely make it worse? Since 1964, 85-98% of House incumbents and 55-96% of Senators have been reelected, according to these graphs posted by the Center for Responsive Politics. My proposal would allow Congress to eliminate the most pernicious of their many tools for incumbency protection--trading access and votes for financial support. From time to time, there has been bipartisan Congressional support for preventing that, but the Supreme Court has blocked them. Of course, there has not often been support for public financing. If public financing were skimpy, incumbents could, I suppose, go back to winning on name recognition, the franking privilege (remember when people thought that was important?), constituent services, "earned media coverage," etc., but will a majority of incumbents really want to take their chances without paid advertising? Certainly important to consider the potential unintended consequences of my proposal.
Skeptic
Roy emailed this comment:
I have two main points in response to Skeptic's insightful comment:
1. I was struck by Skeptic's phrase "the Court has now held that it's unconstitutional for Congress and the President not to be essentially for sale to the highest bidder." What Justice Kennedy would say to that is that where there is a quid pro quo for the contribution or expenditure, that is a bribery, which is illegal. You punish the person who made the bribe and the person who took it, and that is certainly constitutional. In Buckley the Supreme Court upheld the constitutionality of limits on direct contributions to candidates because of the potential for corruption and the appearance of corruption. (What was at issue in Citizens United was independent expenditures.)
The problem with bribery is showing the causal connection between a political campaign expenditure and the public official's actions. Justice Kennedy would say that the contributors are just buying "access" and "ingratiation" and that, relying on the Court's decision in Buckley, "independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. . . . Ingratiation and access . . . are not corruption." Justice Kennedy then went on to acknowledge the legitimate interests of Congress to avoid the appearance of corruption resulting from independent expenditures but concluded, without further reasoning, that Congress cannot solve that problem with an unconstitutional remedy, a ban on political speech.
My own reaction is that what is going on is more subtle than outright bribery. Access and ingratiation do present an appearance of corruption, or at least an appearance of influence, and political expenditures are (at least some of the time) effective tools in influencing how a public official acts. The best evidence is that corporations keep making the expenditures. I don't think you should have to show outright bribery in order to regulate political expenditures.
2. I am wondering about the wisdom of a constitutional amendment that allows Congress to limit political expenditures to natural persons. That would mean that groups like the Sierra Club and the National Rifle Association could not make expenditures with respect to candidates they support or oppose. The same would be true for unions and political action committees. Indeed, no group of people could make political expenditures if they created an entity to act together. Would that mean, as a practical matter, that there could be no pooling of money of any kind to make independent expenditures?
My tentative thought is that it would be enough to say that Congress can impose reasonable limitations on contributions and expenditures, without outlawing corporations and other entities from making them.. Corporations and other entities would be subject to the limitations that Congress adopts. The real problem is not entities versus natural persons. It is the size of the amounts being spent and the actual and apparent effect of the expenditures on governmental decision-making.
I agree the draft amendment would allow Congress to outlaw bundling of contributions, and I might object to that after I see it. I might prefer to retain as lawful entities like political action committees funded entirely by individual contributions. However, the proposed draft doesn't require Congress to make any changes at all in current law and certainly doesn't require Congress to limit campaign spending to individuals with no bundling or intermediation. My proposal is deliberately minimalist--just sweeping away the jurisprudence that money equals speech in election campaigns and immunizing the concept of public financing from Constitutional attack. Given the aggressive stance of SCOTUS on corporations as persons, I think it would be wise to authorize Congress explicitly to treat them as not having the rights of natural persons in this context. To say that artificial persons have none of the rights of citizens would be to go way too far, in my opinion. So I went only this far. Artificial persons would still have the First Amendment right to "petition the government for redress of grievances," i.e., engage in lobbying with no expenditure limits, and all other rights that existing jurisprudence and legislation declares they have.
Skeptic
Roy has emailed me another comment:
With respect to the proposed constitutional amendment, there would need to be an exception to the power of Congress to limit political expenditures to natural persons in order to keep in place the present First Amendment provision prohibiting infringement on the freedom of the press. Most newspapers and other comparable media are owned by corporations. I am assuming no one would want Congress to have the power to silence the press. Including that exception in the amendment would raise the question of whether, given that we are now in modern times, the definition of "press" should be fleshed out to make it clear that other forms of media are included..
The amendment might also clarify whether Congress could limit contributions and expenditures by candidates themselves.
I agree my draft raises the question of how to interface my proposed new Congressional powers with freedom of the press. It's important, but I don't have a response.
Skeptic
Roy proposed to fix the free press problem by just adding one sentence at the end of Section 1. I agree, and here is how it now reads:
Section 1: The Congress shall have the power to enact laws protecting the integrity and reputation for legitimacy of the Congress and the Office of President, of every person holding or seeking an elective office of the United States, and of democratic election processes, by providing for the public financing of elections and campaigns and limiting the use of private funds therein to those provided by citizens who are natural persons, by limiting the amounts that each person may contribute or spend for or against candidates, and by requiring public disclosure of such contributions and expenditures. Nothing in this amendment, however, shall change the prohibition in the First Amendment against Congress making laws abridging freedom of the press.
Section 2: The several States may exercise the same powers to govern elections for offices of the State and its political subdivisions.
Section 3: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
Here are three other draft Constitutional amendments. Senator Chris Dodd and Congressman Tom Udall have introduced a Joint Resolution to adopt a Constitutional amendment. It would authorize Congress and the States to regulate and set limits on contributions to candidates and spending for or against candidates. There is no mention of any distinctions between natural persons and artificial entities or of public financing; is that necessary or sufficient to defang big business opposition?
JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to contributions and expenditures intended to affect elections.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two- thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission by the Congress:
ARTICLE __
SECTION 1. Congress shall have power to regulate the raising and spending of money with respect to Federal elections, including through setting limits on—
(1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and
(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.
SECTION 2. A State shall have power to regulate the raising and spending of money with respect to State elections, including through setting limits on—
(1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and
(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.
SECTION 3. Congress shall have power to implement and enforce this article by appropriate legislation.
Public Citizen’s Scott Nelson, who is one of the attorneys representing the key congressional sponsors of the McCain-Feingold law and co-authored their amicus brief in Citizens United, has offered two proposed forms of Constitutional amendment in Public Citizen’s FAQs about Citizens United. The first would declare that for-profit business entities other than publishers and broadcasters are not covered by the First Amendment at all. The second would authorize Congress and the States to impose reasonable restrictions on the speech and association rights of for-profit business entities that are not publishers or broadcasters and on entities funded by such entities.
The U.S. Supreme Court ruled on January 21, 2010 in Citizens United v. Federal Election Commission that corporations have the same First Amendment rights as people, and that they can spend unlimited amounts of money on elections. We think corporations aren’t people and should not be able to trample democracy. One key way to overturn this decision is through a constitutional amendment, which Public Citizen will pursue. Below are some questions you may have about such an amendment.
Q: What would a “Free Speech for People” amendment to the Constitution say?
A: We’ve suggested a couple of possibilities at this point. One would state:The freedoms of speech and the press, and the right to assemble peaceably and to petition the Government for the redress of grievances, as protected by this Constitution, shall not encompass the speech, association, or other activities of any corporation or other artificial entity created for business purposes, except for a corporation or entity whose business is the publication or broadcasting of information, when such corporation or entity is engaged in that business. A corporation or other artificial entity created for business purposes includes a corporation or entity that, although not itself engaged in business pursuits, receives the majority of its funding from other corporations or artificial entities created for business purposes.
Another possibility would be:
Congress and the States may make laws imposing reasonable restrictions on the speech and association of corporations and other artificial entities created for business purposes. This article shall not authorize restrictions not otherwise permissible on the freedom of speech or of the press enjoyed by a corporation or entity whose business is the publication or broadcasting of information, when such corporation or entity is engaged in that business. A corporation or other artificial entity created for business purposes includes a corporation or entity that, although not itself engaged in business pursuits, receives the majority of its funding from other corporations or artificial entities created for business purposes.
These two possibilities would have somewhat different implications in practice, but both would permit Congress to regulate political spending by business corporations. There are other possible approaches. These suggestions are just the beginning of what must be a thoughtful discussion to determine the best language to protect real people’s right to speak freely and to protect the press from government censorship, while making clear that these rights do not extend to corporations’ speech (except for speech by the media).
Q: What will be the affect of this amendment on the media? Will they keep their First Amendment rights, even though they are corporations?
A: Neither of the amendments that we are suggesting would affect the media. The amendments would provide that members of the media retain their full First Amendment rights when they are engaged in publishing, broadcasting and similar activities. Just like other corporations, however, they would not, however, have the right to sponsor campaign ads or make campaign contributions.
Skeptic
Larry Lessig has his own proposed form of Constitutional amendment in a good discussion here.
Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.
He says this works even if corporations are "persons," they are not citizens, and he wants to change the Constitution as little as possible.
Skeptic
Greg Colvin compares his proposed Constitutional amendment with five other approaches and posts a convenient chart covering 13 issues. His proposed language from here is this:
Amendment XXVIII “Citizens Election Amendment” Version 1.0
Section 1. Only natural persons who are citizens of the United States may make contributions and expenditures to influence the exercise of a citizen’s right to vote, although Congress and the States may also institute systems of public financing for election campaigns.
Section 2. Congress and the States shall have concurrent power to implement this article by measures that may set limits on the amounts of each citizen’s contributions and expenditures, including a candidate’s own spending, and authorize citizens to establish committees to receive, spend, and publicly disclose the sources of contributions and expenditures, and by other appropriate legislation.
UPDATE 11/11/11: Greg Colvin has a good discussion of a fundamental issue here.
Skeptic
Here is the text of a proposed amendment introduced September 12 by Conyers and Edwards:
HJ 78 IH
112th CONGRESS 1st Session H. J. RES. 78
Proposing an amendment to the Constitution of the United States to clarify the authority of Congress and the States to regulate the expenditure of funds for political activity by corporations.
IN THE HOUSE OF REPRESENTATIVES
September 12, 2011
Ms. EDWARDS (for herself and Mr. CONYERS) introduced the following joint resolution; which was referred to the Committee on the Judiciary
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States to clarify the authority of Congress and the States to regulate the expenditure of funds for political activity by corporations.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:
`Article--
`Section 1. Nothing in this Constitution shall prohibit Congress and the States from imposing content-neutral regulations and restrictions on the expenditure of funds for political activity by any corporation, limited liability company, or other corporate entity, including but not limited to contributions in support of, or in opposition to, a candidate for public office.
`Section 2. Nothing contained in this Article shall be construed to abridge the freedom of the press.'.
END
Skeptic
Dylan Ratigan is promoting this form of Constitutional Amendment:
"No person, corporation or business entity of any type, domestic or foreign, shall be allowed to contribute money, directly or indirectly, to any candidate for Federal office or to contribute money on behalf of or opposed to any type of campaign for Federal office. Notwithstanding any other provision of law, campaign contributions to candidates for Federal office shall not constitute speech of any kind as guaranteed by the U.S. Constitution or any amendment to the U.S. Constitution. Congress shall set forth a federal holiday for the purposes of voting for candidates for Federal office."
Skeptic
Greg Colvin lays out an excellent analytical framework for deciding what should be included in a Constitutional amendment. He identifies 12 issues that should be addressed in the drafting.
Skeptic
At a Senate committee hearing this week, Senator Shumer announced that the Senate will vote this year on the proposed Constitutional Amendment introduced by Senator Udall of New Mexico. The Resolution now has 36 Senate co-sponsors and has been revised since its introduction. The current version is as follows:
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States
relating to contributions and expenditures intended to affect
elections.
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled (two-thirds of each House
concurring therein), That the following article is proposed as an
amendment to the Constitution of the United States, which shall be
valid to all intents and purposes as part of the Constitution when
ratified by the legislatures of three-fourths of the several States:
``Article--
``Section 1. To advance the fundamental principle of political
equality for all, and to protect the integrity of the legislative and
electoral processes, Congress shall have power to regulate the raising
and spending of money and in-kind equivalents with respect to Federal
elections, including through setting limits on--
``(1) the amount of contributions to candidates for
nomination for election to, or for election to, Federal office;
and
``(2) the amount of funds that may be spent by, in support
of, or in opposition to such candidates.
``Section 2. To advance the fundamental principle of political
equality for all, and to protect the integrity of the legislative and
electoral processes, each State shall have power to regulate the
raising and spending of money and in-kind equivalents with respect to
State elections, including through setting limits on--
``(1) the amount of contributions to candidates for
nomination for election to, or for election to, State office;
and
``(2) the amount of funds that may be spent by, in support
of, or in opposition to such candidates.
``Section 3. Nothing in this article shall be construed to grant
Congress the power to abridge the freedom of the press.
``Section 4. Congress and the States shall have power to implement
and enforce this article by appropriate legislation.''.
At the same hearing Retired Justice Stevens argued for a Constitutional Amendment and offered this language:
“Neither the First Amendment, nor any 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 election campaigns.
Crooks and Liars has video clips of five witnesses, including Justice Stevens, and brief summaries of their testimony here. I like the simplicity of Justice Stevens' language.
Reader Comments