Views on the OCCUPY Amendment

This is a guest op-ed by Greg Colvin, a partner at the firm Adler & Colvin, originally published at OurFuture.org.

As the struggle in the streets intensifies, and Occupy Wall Street refuses to remain silent, it's good to know there are champions in Congress who have stepped up to the challenge of amending the US Constitution. It's called OCCUPIED: Outlawing Corporate Cash Undermining the Public Interest in our Elections and Democracy, here.

The Supreme Court, in the 5-4 Citizens United decision of January 2010, declared that corporations have free speech rights like human beings and invalidated the ban on corporate election spending that Congress had enacted. Since then, a grassroots movement has emerged to generate popular support for a constitutional amendment to reverse that decision, including months of work by Move to Amend, Free Speech For People, Public Citizen, People For The American Way, Common Cause, and the Center for Media and Democracy.

Rep. Deutch's amendment is a blend of the best ideas.

1. The rights protected by the Constitution belong to human beings (natural persons).
2. Constitutional rights do not extend to for-profit corporations or other business entities, nor do they extend to chambers of commerce that promote business interests.
3. The constitutional rights of other non-profit corporations, such as charities, churches, schools, hospitals, clubs, unions, and environmental groups remain in place.
4. Immediately upon adoption, this amendment would prohibit business corporations and their associations from using money or other resources to influence voting on candidates or ballot measures anywhere in America—at the federal, state, and local levels.
5. Counteracting the 2010 Citizens United case and the 1976 Buckley v. Valeo case, Congress and the states would once again have the authority to regulate and set limits on all election contributions and expenditures, by any group or person.
6. This would empower Congress and the states to control election spending by CEOs and other wealthy individuals, including those rich enough to pay for their own campaigns.

Comparing the OCCUPIED amendment to some of the others proposed:

Unlike the amendment offered by Rep. Jim McGovern (D-Massachusetts), the Deutch amendment does more than remove constitutional rights from corporations, LLCs, and other corporate entities. It reaches all forms of business enterprise, but without the unintended consequence of stripping constitutional rights from unions and nonprofit public interest corporations, such as the Sierra Club, NAACP, Planned Parenthood, and your local community center. The McGovern amendment would not automatically prohibit corporate election spending and would not enable Congress and the states to set limits on election spending by the wealthy. The Deutch amendment does both.

Unlike the companion amendments introduced by Sen. Tom Udall (D-New Mexico) in the Senate and Rep. Betty Sutton (D-Ohio) in the House, the Deutch amendment goes beyond simply authorizing Congress and the states to regulate campaign financing. It removes the shield of constitutional rights from business corporations and their associations, and imposes an immediate, nationwide ban on corporate election spending.

Unlike the ideas floated by TV commentator Dylan Ratigan and Professor Larry Lessig, the Deutch amendment would not use the Constitution to prevent citizens from donating to the candidates of their choice, or to chisel a dollar limit on individual donations into constitutional stone. Wisely, the Deutch amendment protects and does not diminish individual rights, and leaves the matter of setting contribution and expenditure limits to the people through the federal, state, and local legislative processes.

Rep. Donna Edwards (D-Maryland) and a number of co-sponsors in the House bravely introduced the first attempt at drafting an amendment in Congress some months back. Hopefully, she and her colleagues will recognize that the spirit in the streets and around kitchen tables and the level of legal craftsmanship have progressed to the point where a stronger amendment like Rep. Deutch's deserves their support.

Personally, I proposed a simple amendment in January 2011, that would limit campaign financing to the donations of individual citizens only. I still think that's a good idea, but I have to recognize the value of combining everyone's best thinking into a comprehensive reform amendment. Rep. Deutch has done that with OCCUPIED. Let's join him.