-- By Greg Colvin, originally published on OurFuture.org
Since the U.S. Supreme Court decided the Citizens United case two years ago, saying that the Constitution gives corporations the right to spend without limit to influence American elections, people have been asking "how can we amend the Constitution to put this right?"
Now we are in the midst of the first presidential campaign since Citizens United, and we are seeing the result: a combination of "independent" SuperPACs, their related 501(c)(4) groups, and 501(c)(6) business associations raising and spending more than most of the candidate and party committees. So far as we can tell, the largest sources of money are, first, wealthy individuals, second, business corporations, and third, labor unions.
The U.S. Supreme Court has told us this is all OK; independent political expenditures won't corrupt our democracy. But as Groucho Marx said, "who are you going to believe, me or your own eyes?"
The attack ads funded by these wealthy sources mean life or death for candidates and incumbents. Of course they have the power to corrupt. Even when big money may not corrupt, it surely distorts the outcome. Almost always, the candidate with the most money behind him or her, wins.
In this country, each person has one vote, no matter whether you are rich or poor. And it is illegal to buy or sell a person's vote. So why do we allow electoral influence to be bought and sold? Why has politics in America become a commodity in an economic marketplace, where the richest individuals, corporations, business associations, and unions can buy enormous leverage on our elections?
It is not enough to declare that corporations have no constitutional rights, or to give Congress and the states the power to regulate all political contributions and expenditures. Those are only partial remedies. They depend on future legislatures rising up against the economic oligarchy in America and imposing money caps that can't be circumvented.
Past attempts to regulate campaign finance have been like the "squishy balloon" -- squeeze it in one place, it pops out another. Limit what goes to candidates, it goes to parties. Clamp down on party fundraising, it goes to independent 527s. Disclose donors to 527s, and then the unlimited, anonymous money goes to 501(c) nonprofits. All the while, wealthy individuals still spend huge amounts to seek their own elections and force their opponents to try to match them.
The only way to drive big money entirely out of politics is to adjust our system of campaign finance to the scale of the individual voter, who has one vote to cast for each office or measure, and no more. The only source of money to influence American elections should be the individual citizen (with reasonable limits) and, at the option of the federal or state government, public financing.
What if the U.S. Constitution had a limit on the amount each citizen could donate or spend to influence the votes of other citizens, including a candidate's own personal expenditures in pursuit of public office? This could be capped at a modest amount, like a percentage of the median annual household income in America, currently about $52,000. Why should anyone be allowed to contribute or spend a sum to persuade others how to vote that is far more than what the average person could afford?
What follows is a draft of a Twenty-Eighth Amendment to the Constitution that would achieve a thorough, citizen-based, reform of our campaign finance system. Some may say this is unachievable, but it may serve as a marker showing how we could -- if we wanted to -- completely prevent corporate and personal wealth from dominating elections in our free republic. To stop unlimited independent campaign expenditures, immediately upon adoption of the amendment, not only must we reverse the 2010 Citizens United decision as to corporations, but also the 1976 Buckley v. Valeo decision as to individuals.
Amendment XXVIII "Citizens Election Amendment" Version 2.0
Section 1. Only natural persons who are citizens of the United States may make contributions and expenditures to influence how other citizens vote, although Congress and the States may also institute systems of public financing for election campaigns.
Section 2. Congress and the States shall have power to implement this article by measures to 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.
Section 3. No citizen shall make contributions or expenditures in any year, directly or indirectly, in money or anything of value other than personal time and effort, to influence how other citizens vote, in excess of ten percent of the nationwide annual median household income, based on the most recent census data.
Points to note:
- If this amendment were enacted this year, the constitutional money cap would be about $5,200. That's the total of what citizens could spend each year on election campaigns -- on candidates they support or oppose and on ballot measures. Congress and the states could impose further limits, such as minimum age requirements and limits on contributions made to each candidate (there is currently a cap of $2,500 on an individual's direct contribution to a federal candidate).
- Campaign donations and spending by all sources other than individual citizens would be eliminated: corporations (whether for-profit or nonprofit), labor unions, business associations, banks and trusts, foreign donors and multi-national conglomerates would be barred, but public financing would be permitted.
- The amendment would apply to all citizen votes held at all levels of government -- federal, state, and local -- on the nomination and election of candidates for public office and on ballot measures as well.
- In order to finance election campaigns, the political parties, labor unions, business associations, and other interest groups would have to become skilled aggregators, convincing individual citizens to donate within the constitutional cap and within such limits (and disclosure requirements) as Congress or the states may enact. Citizens sharing common political interests could aggregate their donations in committees, which could be controlled by candidates or parties or could be independent.
- I offer Section 3, the constitutional money cap, with some trepidation. As a general principle, the Constitution should not be the place to limit a citizen's rights. However, sometimes the liberty permitted to one citizen can intrude on the freedom and equality enjoyed by others. Before the Thirteenth Amendment abolished slavery, a citizen had the recognized "right" to own, buy, and sell another human being; that right had to give way so that all people could be free.
We cannot have truly free and fair elections in America if political influence can be purchased by the highest bidder. This amendment expands, elevates, and protects the rights of the citizen voter to be the sole source of campaign funds, ensuring the democratic character of our elections with a constitutional guarantee of equality.
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. He proposed Citizens Election Amendment 1.0, without the mandatory money cap, on January 20, 2011, the one-year anniversary of Citizens United.