Citizens United Against the Supreme Court

Author/Sponsor: Neal Rechtman
  Date of Amendment: First Draft ca.. 2004

Amendment Summary: Limits the total amount of money that candidates can raise and spend in general election campaigns for the House of Representatives, the Senate, and the Presidency.  It requires the 50 state legislatures and the Congress to establish a fixed budget for each Federal general election, and to partially fund these elections with general tax revenue. 

The Amendment provides a formula for distributing public campaign funds to qualifying candidates, and strictly limits the amount of private contributions that candidates may raise to augment their share of publicly allocated funds. 

General election campaigns are limited to seventy (70) days' duration.  During this period no individual, organization or committee, other than the candidates' personally authorized General Election Campaign Committees, may sponsor mass media advertising that names, pictures or conveys the identity of any candidate running in the election.  

Amendment Text: http://www.amendment-28.com/final/amendment.cfm (will open in new window)

Critique(s): [None; e-mail your comments to info@amendment-28.com]

Defense(s):
Neal Rechtman (Author) - By limiting the total amount of money than can be spent in a Federal general election, this approach puts an end to the spiraling cost of campaigns, the need for sitting Congressmen and Senators to constantly raise money, and the outsized influence of major campaign contributors.

  Author/Sponsor: MoveToAmend.org
  Date: March, 2010

Amendment Summary:  Authorizes Congress to set limits on contributions and expenditures for all Federal elections.

Amendment Text:  http://www.movetoamend.org/democracy-amendments
SECTION 1. For the purposes of providing all citizens, regardless of wealth, a more equal opportunity to influence elections, public policy and run for public office; of furthering the principle of "one person, one vote" and preserving a participatory and democratic republic; as well as the purpose of limiting corruption and the appearance of corruption, we the people declare the unlimited use of money to influence elections incompatible with the principle of equal protection established under the Fourteenth Amendment.

SECTION 2. The Congress shall have the power to set limits on contributions and expenditures made to influence the outcome of any federal election.

SECTION 3. Each state shall have the power to set limits on contributions and expenditures made to influence the outcome of elections in that state.

SECTION 4. The power of each state to set limits on contributions and expenditures shall extend to all elections in that state, including initiative and referendum elections, as well as the power to lower any federal limits for the election of members of Congress to represent the people of that state.

SECTION 5. Congress shall have power to implement and enforce this article by appropriate legislation.

Critique(s):
Neal Rechtman - Well, I hardly know where to begin. Section 1 is not an amendment, it's a preamble. Constitutional amendments don't have or need preambles -- their justification should be self-evident.

Sections 2 & 3 incorporate part of my own proposition, to allow limits on expenditures (currently illegal per Buckley v. Valeo).  The difference is that in MoveToAmend's version, it is up to Congress and the States to determine how limits are to be set (both on contributions and expenditures).  If we leave Congress in charge of regulating campaign finance, they'll come up with laws like FECA and BCRA -- which do little to limit campaign spending and serve primarily to protect incumbents from challenges by outsiders.

My amendment, by contrast, directs Congress and the States to apply specific formulas for limiting spending and allocating public funds, the advantage being that it prevents incumbents from legislating spending advantages for themselves over their challengers.

In general I am opposed to any amendment that allows the details of campaign regulation to be controlled by Congress -- that's leaving the fox in charge of the chicken coop. I also see an internal redundancy in setting limits on both contributions and expenditures. If limits are set on expenditures, those limits de facto represent limits on contributions -- all that's needed in the spare language of the law are limits on expenditures.

Section 4 needs a little language repair, and suffers from the same contributions/expenditure contradiction referenced above, but I support any initiative that can bring campaign finance reform to the local level as well as the Federal level. Again, my concern is that leaving the details to the Congress and to the State legislatures will result in the equivalent of an Incumbents Protection Act.

Defense(s):  [None; e-mail your comments to info@amendment-28.com]

Amendment Summary: Lessig 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 and spend money.

Amendment Text:
1. Congress shall have the power and obligation to protect its own independence, and the independence of the Executive, by assuring, through citizen vouchers or public funding, that the financing of federal elections does not produce any actual or reasonably perceived appearance of dependence, except upon the People.

2. Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.

3. Courts shall defer to factual judgments about an actual or reasonably perceived appearance of dependence when such judgments are made by independent, non-partisan commissions whose Members pledge not to enter elected office for a period of at least 10 years after service on the commission.

Critique(s):
 Neal Rechtman - Lessig might as well have written the first sentence of Section 1as follows: "Congress shall have the power and obligation to protect its own re-election and incumbency interests." The moment you leave the mechanics of campaign finance -- even if it's restricted to citizen vouchers or public funding -- in the hands of Congress, there's a conflict of interest. Congress will (not unrationally) use whatever power and leverage it has to protect its own incumbency.

As I understand Lessig's proposal, he's assuming (as would I) that the traditional Courts, including the Supreme Court, won't be capable of judging what represents an "actual or perceived conflict of interest" in the campaign process established by the Congress. So to resolve the conflicts that will inevitably arise out of the highly subjective and abstract wording of Section 1, Lessig calls for our courts to defer to oxymoronic "factual judgments" (!?) made by "independent, non-partisan commissions" --and here the amendment trails off onto a flimsy tangent describing the nature and qualification of "non-partisan commissioners" (more oxymoron potential).

I like the "prime directive" concept in theory, but not when its effective implementation requires a wholly new fourth branch of government. In my view the ultimate consequences of this amendment, if enacted, would be far from certain: there is nothing compelling that says moneyed interests will no longer control the election process in our 'democracy'. I see it as too vague and abstract a proposition to generate the kind of broad public support that would be needed to enact a constitutional amendment.

Defense(s): [None; e-mail your comments to info@amendment-28.com]

  Author/Sponsor:  Senators Dodd (CT) and Udall (NM)
  Date: February 24, 2010

Amendment Summary: Would authorize Congress and the State legislatures to set contribution and spending limits for all Federal and State elections.

Amendment Text: 
Section 1. Congress shall have power to regulate the raising and spending of money with respect to Federal elections, including through setting limits on--
(1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and
(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.
Section 2. A State shall have power to regulate the raising and spending of money with respect to State elections, including through setting limits on--
(1) the amount of contributions to candidates for nomination for election to, or for election to, State office; and
(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.
Section 3. Congress shall have power to implement and enforce this article by appropriate legislation.

Critique(s):
Neal Rechtman - Similar to MoveToAmend, this proposal basically would give Congress and the State legislatures carte blanche to organize campaign finance as they see fit. Inevitably, whether intentional or not, this leads to laws and regulations that favor incumbents, and makes it harder for challengers to gain any traction at all -- especially challengers who don't start off with big bank accounts.

Defense(s): [None; e-mail your comments to info@amendment-28.com]

  Author/Sponsor:  Representative Donna Edwards (MD-4)
  February 2, 2010

Amendment Summary:  Narrowly addresses the corporate personhood consequences of the Citizens United decision by authorizing Congress to regulate corporate expenditures on political speech.

Amendment Text:
Section 1. The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity.

Section 2. Nothing contained in this Article shall be construed to abridge the freedom of the press.

Critique(s):
Neal Rechtman - This proposal, like the majority of the others, gives Congress the right to regulate an important (if limited) aspect of the campaign finance issue. In my view, Congress should under no circumstances be given any type of general authority to establish campaigning financing methodologies.

Note that an amendment such as the one I have proposed, which simply limits expenditures on Federal general elections according to a pre-set formula, would obviate the need to limit the amounts and sources of contributions, because only a limited amount of money can be raised to begin with.

Defense(s): [None; e-mail your comments to info@amendment-28.com]

Amendment Summary:  Prohibits the use of corporate or labor union money for election advertising, even when the ad does not expressly advocate the election or defeat of a specific candidate.

Amendment Text: 
No corporation or labor organization may use any of its operating funds or any other funds from its general treasury to make any payment for any advertisement in connection with a campaign for election for Federal office, without regard to whether or not the advertisement expressly advocates the election or defeat of a specified candidate in the election.

Critique(s):
Neal Rechtman - This pre-Citizens United initiative addresses only the limited issue of corporate and labor union influence in Federal elections. This is a prime example of the type of restriction that corporations and labor unions are expert at circumventing. Without a limit on the dollar amount of money that can be spent (i.e. with an infinite need for campaign cash), it doesn't matter how you go about regulating contributions: big contributors will always find a way to direct their money and influence towards their preferred candidates. It's hard to see how this initiative, standing alone, will do anything to change the fundamentals of campaign finance.

Defense(s): [None; e-mail your comments to info@amendment-28.com]

Amendment Summary:  Authorizes Congress and the State legislatures to set contribution and spending limits for all Federal and State elections.

Amendment Text: 
Section 1. Congress shall have power to set limits on the amount of contributions that may be accepted by, and the amount of expenditures that may be made by, in support of, or in opposition to, a candidate for nomination for election to, or for election to, Federal office.

Section 2. A State shall have power to set limits on the amount of contributions that may be accepted by, and the amount of expenditures that may be made by, in support of, or in opposition to, a candidate for nomination for election to, or for election to, State or local office.

Section 3. Congress shall have power to implement and enforce this article by appropriate legislation.

Critique(s):
Neal Rechtman - This is a woman who was way ahead of her time. A year before Citizens United galvanized everyone's attention, Congresswoman Kaptur submitted a House Joint Resolution (6 co-sponsors) calling for an amendment almost identical in content and effect to the Dodd/Udall proposal above. It also suffers from the same fatal flaw: it leaves all the details of limiting/controlling campaign contributions and expenditures to Congress, i.e. sitting incumbents will be able to use their legislative/regulatory power to maintain their advantage over challengers, especially grass-roots challengers.

Defense(s): [None; e-mail your comments to info@amendment-28.com]