In recent years numerous organizations have taken up the issue of campaign finance reform (www.publiccampaign.org, www.democracymatters.org, and www.reclaimdemocracy.org, among others), and I encourage and endorse their work. There has been some success at the state level, where campaign finance reform advocates have managed to implement voluntary Clean Election programs in Maine, Arizona and various municipal jurisdictions. To date, however, there is no immediate prospect of curbing the vast sums of money flowing into Federal general elections.
Congress itself, knowing how poorly the system reflects on incumbents, has enacted campaign finance reform legislation: FECA (1973) and BCRA “McCain/Feingold” (2002). The general objective of this legislation has been to level the playing field by imposing limits on contributions, and by requiring disclosure of the source of donations above a certain amount. Whatever Congress’ intent, in practice these “reforms” – now consisting of 500+ pages of small-type, double-column Federal Election Commission regulations -- serve only to intimidate grass-roots candidates who have minimal financial resources, and to favor incumbents and well-funded candidates who can afford the cost of legal compliance.
Other efforts by Congress to limit spending on Federal election campaigns have run afoul of the Supreme Court, which in its widely criticized Buckley v. Valeo decision (1976)* found that any law limiting a candidate’s expenditures “is wholly alien to the First Amendment.” And now, with its most recent decision in Citizens United, the Court has virtually guaranteed that moneyed special interests will dominate campaign funding and increase their already-substantial influence in Congress.
In light of this history, my approach is to address the issue at the most fundamental (constitutional) level. Framing the issue as a constitutional amendment leaves no doubt as to its constitutionality, and limiting the total amount of money that can be spent in a campaign puts an end to the spiraling cost of campaigns, the need to constantly raise money, and the outsized influence of major campaign contributors.
There are of course different ways to frame a campaign finance amendment -- other than limiting spending. One obvious example would be to try to construct an amendment that would limit donations and compel donor disclosure, in effect distilling into an amendment the core mechanisms of FECA and BCRA. Considering how ineffective and counter-productive these legislated efforts have been in the past, and how impractical it would be to distill 500 pages of small-type, double-column FEC regulations into an intelligble few paragraphs, it's hard to see how such an approach would garner much public support.
A different effort recently launched by Stanford Law Professor Lawrence Lessig at www.callaconvention.org takes a more abstract approach to the issue, offering up a kind of “prime directive” that limits by broad stroke the ways that campaigns can raise money. As a general methodology the "prime directive" approach might be feasible, but Lessig's current draft would leave the amendment wide open to (mis)interpretation by the Supreme Cour. Been there, done that.
An objective analysis of the issues reveals that the ideal amendment is one that: (a) reduces or eliminates candidates' dependence on private campaign donations; (b) contains the exponentially rising cost of campaigns; and (c) can be clearly expressed as a constitutional amendment and explained to the public in simple and compelling terms.
Although other ideas and concepts may well yet emerge, at this stage of the effort the amendment that best a meets these criteria is the 28th Amendment proposed here.
In brief, proposed constitutional amendments must first be approved by a two-thirds majority of Congress (both the House and the Senate). Once through Congress, the Amendment must then be ratified by a simple majority of three-fourths of the state legislatures (38 states). Only after ratification by the state legislatures does the Amendment become law.
My first objective for the proposed 28th Amendment, therefore, is to get at least two-thirds of all Congressmen and Senators to vote for its adoption.
There are actually other ways to amend the Constitution, but the foregoing is the only route that has been used successfully to date. For complete details read Article V of the US Constitution, or visit one of many Web sites that provide detailed infromation, such as www.usconstitution.net.
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*Don’t get me started. In lieu of my rant, you might want to check out Democracy and the Problem of Free Speech by law professor Cass Sunstein (The Free Press, 1995).