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Monday, February 1, 2010

All This Constitutional Amendment Needs Is the Right Name

Posted by on Mon, Feb 1, 2010 at 6:02 AM

constitution.jpg
We promised you we'd produce a Constitutional amendment to fix Citizens United. In fact, we have a Constitutional amendment to fix the problem of corporate money in politics, period. The amendment follows, and an annotated amendment—explaining what this language does—is after the jump.

This amendment gives congress and the states full rein to make change in whatever way they see fit to address the scourge of filthy lucre in politics. It undoes the frightening part of Citizens United; it also attempts to make clear that the use and abuse of money in politics can be regulated, even prohibited.

Here's the fun part: This amendment needs a name! Whether you understand it or not, you can give this thing a good name, a name that will help this amendment work its way through the process of becoming law (as it surely will). Propose a good enough name in the comments, and fame and fortune will be yours. We thought about The People's Democracy Amendment, but decided it sounds like Chairman Mao. So, help!

The _______________ Amendment

1. Congress shall have the power to prohibit, restrict the time, place and manner of, and otherwise regulate contributions to candidates for federal office, expenditures made to influence elections for federal office, and expenditures made to influence the making of federal law or the operation of the federal government.

2. Each State shall have the power to prohibit, restrict the time, place and manner of, and otherwise regulate contributions to candidates for office in the State, expenditures made to influence elections for office in the State, and expenditures made to influence the making of law or the operation of government within the State. These powers shall extend to candidates and elections for the State's representatives to Congress.

3. Prohibition, restriction and regulation by a State of contributions to candidates for the State's representatives to Congress, or expenditures made to influence elections for the State's representatives to Congress, may be more restrictive than restriction, limitation, and regulation by Congress of those contributions and expenditures.

4. The power of Congress and the States shall include without limitation the power to set limits on contributions and expenditures and the power to require public disclosure of the source, amount, and nature of the contribution or expenditure.

5. Congress and the States may distinguish between living humans and corporations and other entities or associations in the exercise of powers under this Article.

6. In this Article, the making of law shall include legislation by the Congress and by the legislative bodies or citizens of a State, and shall include amendment of this Constitution and the constitution of a State. In this Article, the operation of government shall include the operation of the legislative, executive, and judicial branches of government.

All is explained after the jump.

The _______________ Amendment

1. Congress shall have the power to prohibit [yes, even prohibit; the purpose being to immunize any effort by Congress to regulate money in politics from Constitutional attack; this amendment does not attempt to tell Congress or the States how they might exercise their power], restrict the time, place and manner of [First Amendment jurisprudence has long recognized the validity of time, place and manner restrictions on speech], and otherwise regulate contributions to candidates for federal office [direct donations to candidates], expenditures made to influence elections for federal office [independent expenditures of the kind addressed in Citizens United], and expenditures made to influence the making of federal law or the operation of the federal government [lobbying].

2. Each State shall have the power to prohibit, restrict the time, place and manner of, and otherwise regulate contributions to candidates for office in the State, expenditures made to influence elections for office in the State, and expenditures made to influence the making of law or the operation of government within the State. [Same considerations apply to State regulation as to Federal regulation; while Citizens United addressed Federal regulation, States, which are subject to the First Amendment via the Fourteenth Amendment, are automatically affected by the logic of Citizens United.] These powers shall extend to candidates and elections for the State's representatives to Congress. [There has been controversy about the ability of States to regulate Congressional elections; this is intended to take care of it, insofar as States desire to regulate money in Congressional elections.]

3. Prohibition, restriction and regulation by a State of contributions to candidates for the State's representatives to Congress, or expenditures made to influence elections for the State's representatives to Congress, may be more restrictive than restriction, limitation, and regulation by Congress of those contributions and expenditures. [Hey, states’ rights! Go Federalism! No reason the State of Washington can't regulate money in elections for its representatives to Congress, even if, say, Alabama decides not to.]

4. The power of Congress and the States shall include without limitation the power to set limits on contributions and expenditures and the power to require public disclosure of the source, amount, and nature of the contribution or expenditure [just in case people start listening to Justice Thomas—he hates the disclaimer and disclosure rules of McCain-Feingold].

5. Congress and the States may distinguish between living humans and corporations and other entities or associations in the exercise of powers under this Article. [Call this "the Citizens United clause." Fine, speech is protected by the First Amendment without regard to whose mouth whence it comes, but that doesn't mean corporate money for politics can't be regulated, even prohibited.]

6. In this Article, the making of law shall include legislation by the Congress and by the legislative bodies or citizens [Initiatives! Referenda! Hey there, Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints!] of a State, and shall include amendment of this Constitution and the constitution of a state. In this Article, the operation of government shall include the operation of the legislative, executive [e.g., all federal agencies], and judicial branches of government [spending money in connection with lobbying of judges is already pretty much prohibited, but this Amendment is an attempt to be comprehensive].

All is fixed, right? If only this Amendment had the right name...

Related: A first reaction to Citizens United; the wrong kind of amendment to fix Citizens United; what reading the opinion feels like ("long... ominous... mind-bending"); and Justice Stevens's bristling dissent.

 

Comments (27) RSS

Oldest First Unregistered On Registered On Add a comment
1
Is there anything in there that prevents Congress or the States from prohibiting or limiting contributions from living people based on, say, their views? It seems really broad.
Posted by someone reading thisT on February 1, 2010 at 6:33 AM
2
Can't we just simplify the whole thing and say something more like "Corporations, businesses, Unions and other organizations are not people and are not subject to the same protections that people are." or something like that? That seems way easier and opens us to be more flexible with regulation in the future.
Posted by Root on February 1, 2010 at 6:41 AM
Fifty-Two-Eighty 3
It's fabulously overbroad. And besides, you don't really think even one politician is going to vote for something that restricts political contributions, do you?
Posted by Fifty-Two-Eighty http://www.nra.org on February 1, 2010 at 7:17 AM
Cato the Younger Younger 4
What we need is a full fledged constitutional convention similar in scope to the one in 1789. Though, I'd be terrified at what would come out of such an event given our current lack of political wisdom these days...
Posted by Cato the Younger Younger on February 1, 2010 at 7:20 AM
5
@2: The reason that won't work is described in the article linked to by the phrase "wrong kind of amendment" above.
Posted by Canadian nurse on February 1, 2010 at 7:36 AM
6
The All Corporations Are Immoral Greedy Bastards Who Can't Be Trusted Amendment
Posted by cliche on February 1, 2010 at 7:58 AM
7
You do realize that this amendment could be interpreted to give Congress the power to prevent The Stranger from publishing editorials. (Because you guys spend money to print it, and it might influence the making of federal law.) So that would suck for you guys.
Posted by clinky on February 1, 2010 at 8:27 AM
Catalina Vel-DuRay 8
How about throwing something in there to the effect that the lifetime of a corporation is 50 years, and that they have to re-license it if they want to make it last longer than that?

And make it a tough re-licensing process. Like re-licensing a hydro-electric project.
Posted by Catalina Vel-DuRay http://www.danlangdon.com on February 1, 2010 at 8:34 AM
9
The "Amendment to end Bribery and Give Voters Back their Voices.

"Voters' voices come first. To end corruption through the purchasing of free speech, the "Equal Votes, Equal Voice Amendment" is needed. **Voters' Voices Must be Heard!** All voters should all have an equal chance to raise our voices to government -- without beiong drowned out by floods of money from nonvoting corporations and nonvoting aliens.

"Voters come first! We need reasonable regulations on the purchasing of speech (not its content) by nonvoters. Free speech isn't for sale to nonvoters! Government for the people means voters' voices come first. We can't let nonvoters drown us out!"
Posted by Ward Smith on February 1, 2010 at 8:35 AM
10
Duh.

Leaving aside the crappy and both overbroad and overspecific wording for a moment, the name part is easy. Easy, that is, if you want to pass the thing. Cleverness would be a liability, imho.

The Campaign Finance Reform Enablement Amendment.

Once enabled, of course, we'd still have to hope and wait for true campaign finance reform. Don't hold your breath.
Posted by Brooklyn Reader on February 1, 2010 at 8:59 AM
11
How about something fairly neutral, which describes what it's about? The Campaign Finance Amendment.
Posted by SwissMiss on February 1, 2010 at 8:59 AM
Catalina Vel-DuRay 12
Campaign finance is just a symptom. The problem is that corporations should not have the rights of individuals, because they don't have the responsibilities of individuals - or the lifespan.
Posted by Catalina Vel-DuRay http://www.danlangdon.com on February 1, 2010 at 9:04 AM
fixo 13
@7. This doesn't repeal the First Amendment. But it does stray far beyond Citizens United. It theoretically would permit Congress to outlaw expenditures for "issue" advertising by persons and corporations, which is generally recognized as good and desirable (although prohibited close to primary and general elections by McCain-Feingold if done by a corporation with its general funds). So, there are places where this Amendment would crunch up against the First Amendment freedoms of speech and the press, requiring reconciliation. The problem is in the "intended to influence" language, which is meant to permit restrictions on lobbying, but which by its broad literal terms would permit regulation of issue advertising or, worse, expenditures by a newspaper for editorials. Hmm, this may call for a fix......
Posted by fixo on February 1, 2010 at 9:12 AM
Fnarf 14
Holy crap, that things twice as long as the first ten amendments put together.
Posted by Fnarf http://www.facebook.com/fnarf on February 1, 2010 at 9:15 AM
15
As the main purpose of this amendment is to repair the damage the Supreme Court just did, let's keep the wording simple and to the point.


Congress and the States shall have the power to regulate campaign expenditures and to distinguish between natural persons and corporate entities.
Posted by Brooklyn Reader on February 1, 2010 at 9:17 AM
16
You people lack imagination. Clearly, it should be called the Restoration of Democracy amendment or something similar. Who's gonna vote against restoring democracy?
Posted by ThisDan on February 1, 2010 at 9:18 AM
gloomy gus 17
Do you guys have an opinion about whether an amendment is the best way to address the decision, though? I see you jumped right to offering this up, but why?
Posted by gloomy gus on February 1, 2010 at 9:20 AM
I'm 85 Years Old 18
You have to name it the opposite of what it is ala patriot act. Like, the Corporate Freedom Act.
Posted by I'm 85 Years Old on February 1, 2010 at 9:39 AM
fixo 19
@15. There is much to like about your way of doing it. The pernicious influence of money in politics goes beyond campaign spending, and the proposed Amendment tries to address all of it. Not an easy thing, among other issues with it.....
Posted by fixo on February 1, 2010 at 9:57 AM
STJA 20
@ 3 - You think politicians like raising money? They don't.
Posted by STJA on February 1, 2010 at 10:10 AM
Fifty-Two-Eighty 21
That may or may not be the case, but I'm for damned sure not a one of them will vote to turn off the spigot.
Posted by Fifty-Two-Eighty http://www.nra.org on February 1, 2010 at 10:18 AM
pissy mcslogbot 22
they should narrow it down a bit, 'cause like with a name it should be simple, like say: the WASH(Watch Alito Shit Himself) Ammendment.
Posted by pissy mcslogbot on February 1, 2010 at 10:28 AM
23
The Clean Politics Amendment
Posted by Citizen Rob on February 1, 2010 at 5:33 PM
24
The American Free Elections Amendment - meaning free from the corrupting influence of corporations, lobbyists, and the wealthy. Free for the American people to have a real voice in what their elected officials do once they are elected.
Posted by stella on February 2, 2010 at 12:19 PM
25
I like the Clean Politics Amendment. But what we really should be trying to do is taking absolutely ALL private money out of politics and going to public financing of all campaigns. That is the only way to end the corruption that has created our delusional democracy.
Posted by statusquobuster on February 2, 2010 at 1:27 PM
26
The 28th.
Posted by Garth B on February 3, 2010 at 12:14 PM
27
The Free American People Amendment
Posted by J4zonian on February 22, 2010 at 11:19 AM

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