Colvin on Comparing the Constitutional Amendments Proposed after Citizens United

By Greg Colvin

Among those who feel the only way to overcome the Citizens United decision, which opened the door to unlimited corporate spending on elections, is to amend the U.S. Constitution, the question on everyone's mind is: "So what's the language?"

I offered a version of my own, the Citizens Election Amendment, posted three months ago at this site. It got a pretty good response (over 400 people "liked" it on Facebook) and last week I was in Washington, DC, talking to several members of Congress about it.

The main approach I take is to build upon the individual citizen's constitutional RIGHT TO VOTE (a right that Americans have shed blood and died for), protecting and expanding it to give citizen human beings the right to be the sole source of funding for election campaigns.

I feel obliged, though, to try to compare several alternative versions that have been offered. Drafting the language is a difficult challenge. There are problems of purpose, scope, clarity, and unintended consequences—not to mention acceptance by two-thirds of both Houses of Congress, three-quarters of the state legislatures, and the American people.

Here are the five options I've looked at, in addition to my own. My analysis is summarized in chart form at the bottom of this post, titled "Comparing Draft Constitutional Amendments after Citizens United" (problematic elements highlighted in yellow).

1. Rep. Donna Edwards, introduced in January, 2010, found here.
2. Sen. Max Baucus, introduced in July, 2010, found here.
3. Rep. Marcy Kaptur, introduced in January, 2011, here. This is similar to, but shorter than, a version introduced in 2010 by Senators Dodd and Udall.
4. A version from Jeff Milchen and David Cobb, from Thom Hartmann's book excerpt "Wal-Mart Is Not a Person," found here. Milchen and Cobb are associated with MoveToAmend.org, which is going through a broad democratic process before presenting an official version.
5. From Free Speech for People, two versions (A and B), found here. See FreeSpeechforPeople.org.

The proposed amendments basically fall into two categories, with differing purpose and scope:

• Fix Campaign Finance (Edwards, Baucus, Kaptur, Colvin)
• Abolish Corporate Personhood (Milchen/Cobb, Free Speech for People)

The amendments introduced by Edwards, Baucus, and Kaptur have no automatic impact on the financing of American elections; they simply authorize Congress and the States to pass campaign finance laws without fear that the U.S. Supreme Court will strike them down as unconstitutional. This is a moderate approach, aiming to revive the reform legislation passed during the forty years before Citizens United.

The earliest version, from Donna Edwards, authorizes regulation of "expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity." No definition of "political speech" is provided. Further, only corporate entities and LLCs are covered, leaving unions, banks, trusts, coops, unincorporated associations and other legal entities unregulated.

The Baucus version addresses only corporations and labor organizations, leaving LLCs and all the other forms of legal entities untouched.

The Kaptur amendment, like the Dodd/Udall version from 2010, authorizes Congress and the States to set limits on the amount of contributions accepted by, and the amount of expenditures made by, in support of, or in opposition to, a candidate. This has the advantage of covering all players: corporations, unions, LLCs, any other kind of legal entity, and wealthy individuals.

Milchen/Cobb and FreeSpeechforPeople offer amendments to establish that constitutional rights are only for natural persons (human beings), stripping corporations and perhaps some other types of entities of any constitutional rights, including political and commercial speech, and other civil rights in areas such as search and seizure, eminent domain, criminal defense, due process, and equal protection of the law.

Remember, when we use the word "corporation" we are referring not only to Wal-Mart, Exxon, and General Motors, but to nonprofit organizations like the Sierra Club, the AARP, and your favorite church, hospital, and university.

In other words, the complete dismantling of corporate rights under the U.S. Constitution could have unintended consequences. If such an amendment were adopted, Congress and each State would need to adopt a patchwork of new laws, likely to vary among the jurisdictions, in order to fill the gaps.

Looking at the specific amendments, Milchen/Cobb goes further and would prohibit corporations and "other for-profit institutions" from influencing elections, legislation, or government policy. Nonprofit rights are unclear.

Free Speech for People offers two versions: (A) is a complete removal of corporate constitutional rights and (B) would remove only corporate First Amendment rights. Both use the same incomplete language as the early Edwards version, "corporation, limited liability company/entity, or other corporate entity," leaving the rights of unincorporated unions, trusts, banks, associations, etc., untouched.

None of the anti-corporate personhood proposals would deal with campaign spending by wealthy individuals, including the candidates themselves. So, the corporate CEOs and rich stockholders could spend enormous amounts from their personal fortunes (as the ancient Romans did) to influence the outcome of elections in their favor.

Finally, the Citizens Election Amendment that I propose is limited to the problem of campaign finance. Unlike Edwards, Baucus, and Kaptur, it has automatic effect by making individual citizens the only permitted source of campaign funding, eliminating corporations and all other entities from the field. Like the Kaptur amendment, it would allow Congress and the States to regulate the personal spending of wealthy individuals, so that the intention of this reform could not be circumvented.

Unlike the others, my amendment would specifically: (1) address how citizens might legally aggregate their contributions (via a registered political committee; think MoveOn.org Political Action), (2) cover initiatives, referenda, bonds, and other ballot measures, and (3) permit public financing of elections.

Should we be debating which version is the best? Or should there be two—one to thoroughly address campaign finance reform and another to abolish or restrict the constitutional rights of corporations and other legal entities?

Perhaps both are worthy of consideration and should be advanced on separate, but complementary tracks.

Then, we can evaluate the options based on our experience in 2012, likely to be the most expensive campaign season in American history.

Greg Colvin is an attorney in San Francisco specializing in tax-exempt law, including political and lobbying activities of nonprofit organizations, who has written and lectured on the subject for over 20 years. The Citizens Election Amendment was developed in concert with Barry Kendall, executive director of Progressive Ideas Network, a project of Demos, and Lisa Graves, executive director of Center for Media and Democracy.

colvin@adlercolvin.com
415-421-7555 x211