Posted by Brendan Fischer on March 20, 2013

Sen. Bernie Sanders (I-VT) and Rep. Ted Deutch (D-FL) have introduced a new constitutional amendment to overturn the damage done by Citizens United, Buckley v. Valeo, and other judicial decisions that have diluted the role of ordinary people in American democracy.

"The Democracy is for People Amendment will stop corporations and their front groups from using their profits and dark money donations to influence our elections while reaffirming the right of the American people to elections that are fair and representatives that are accountable," Rep. Deutch said in a statement.

The proposed amendment has two parts. Here is what it aims to accomplish:

Section I: Only Human Beings May Spend on Elections

Section I declares that only human beings -- "natural persons" -- can spend money to influence the outcome of elections on the federal, state, and local levels (including ballot measures).

Whereas the right to vote in public elections belongs only to natural persons as citizens of the United States, so shall the ability to make contributions and expenditures to influence the outcomes of public elections belong only to natural persons in accordance with this Article.

The amendment would prohibit for-profit entities from making election-related expenditures and would also limit spending to influence elections by non-profit corporations, like David Koch's Americans for Prosperity or Karl Rove's Crossroads GPS, which in recent years have been a vehicle for wealthy donors to spend millions on elections while keeping their identities secret. Trade associations like the U.S. Chamber of Commerce or PhRMA, as well as labor unions, would also be prohibited from spending money to influence outcomes in elections.

However, the amendment would not affect other constitutional protections that courts have extended to for-profit and non-profit corporations, such as "due process" rights and search and seizure requirements.

If enacted, the ban on corporate political spending would take immediate effect; no further legislation would be required by Congress or the states.

Section II: the Public Has a Powerful Interest in Fair Elections

Section II of the "Democracy is for People" amendment clarifies that Congress has broad latitude to regulate elections and campaign finance -- and most notably, that their authority is not limited to the narrow interpretation of "corruption" described by the Supreme Court in Citizens United. Section II states:

Nothing in this Constitution shall be construed to restrict the power of Congress and the States to protect the integrity and fairness of the electoral process, limit the corrupting influence of private wealth in public elections, and guarantee the dependence of elected officials on the people alone by taking actions which may include the establishment of systems of public financing for elections, the imposition of requirements to ensure the disclosure of contributions and expenditures made to influence the outcome of a public election by candidates, individuals, and associations of individuals, and the imposition of content neutral limitations on all such contributions and expenditures.

The language establishes that the public has a constitutional interest in "the integrity and fairness of the electoral process" and in limiting the "corrupting influence of private wealth in public elections." It also provides that American citizens have a compelling interest in the fair functioning of democracy ("the dependence of elected officials on the people alone"), as opposed to a mere interest in preventing quid pro quo corruption. Under the amendment, Congress and state legislatures can therefore take appropriate action to regulate elections and election spending -- for example, by limiting how much wealthy individuals can donate to candidates or spend on their own campaigns.

This provision also gives Congress the authority to close the sham "issue advocacy" loophole that has allowed dark money groups to avoid campaign finance regulations by claiming their spending is about an "issue" rather than influencing elections.

Additionally, it authorizes laws to require disclosure of donations and political expenditures, but does not require disclosure of "all" donations. So Congress, for example, might allow small donors under $200 to remain anonymous.

Section II also explicitly authorizes Congress and the states to enact systems of public financing to promote political equality and enhance the influence of small donors.

A thorough analysis of the amendment by attorney Greg Colvin of the law firm Adler & Colvin can be viewed here.

Growing Support for Reversing Citizens United

Joining Deutch in the House as original cosponsors were Reps. Judy Chu, David Cicilline, Peter Defazio, Rosa DeLauro, Keith Ellison, Eliot L. Engel, Alcee L. Hastings, William Keating, Eleanor Holmes Norton, George Miller, Jim Moran, Ed Perlmutter, Chellie Pingree, Charles Rangel, John Sarbanes, Jan Schakowsky, Kurt Schrader, Louise Slaughter, Henry Waxman, and Peter Welch.

Said Senator Sanders: "What the Supreme Court did in Citizens United is to tell billionaires like the Koch brothers and Sheldon Adelson, 'You own and control Wall Street. You own and control coal companies. You own and control oil companies. Now, for a very small percentage of your wealth, we're going to give you the opportunity to own and control the United States government.' That is the essence of what Citizens United is all about. That is why this disastrous decision must be reversed."

Nine out of every ten Americans -- of all political persuasions -- agree there is too much money in politics. In recent years, 11 states and more than 300 cities and towns have passed resolutions calling for Citizens United to be overturned.

Any amendment originating in Congress must be approved by a two-thirds majority in the House and Senate, then ratified by three-fourths of the states.

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.

Comments

Citizens United is nothing more than the rehash of the "Business Plot" of 1934. With the ultimate goal of destroying our Democracy.

Just wanted to chime in here, since this is so important,
I agree with Bernie on Citizen's United & Corporate Influence !

In this time of hypocrisy and environmental destruction, the single most important thing we must do is to SAVE our Democracy. It is beyond party politics. We need massive public organization and information to spur the simple pressure of all citizens on Congress. Call and write all media outlets and your representatives and talk to friends, until America hears what IS possible for us to do to reclaim the voice of our country and make representatives accountable to citizens not corporations.

Amendments introduced so far do not close loopholes. The 2nd part as proposed by Move to Amend, "money is not speech" needs to be included in any amendment. If none of us had to donate to politicians' campaigns we would be assured that the elected official was not influenced by anyone's money.

A shorter campaign with debates as they used to be- given during donated times on major networks, news that is not planted by heavily funded groups but reported by newspaper reporters, would begin to restore trust.

HR House Joint Resolution 29 introduced February 14, 2013 addresses both aspects.,, Corporations are not persons. Money is not speech.

What I don't get: why doesn't the amendment restrict legitimate donations to those that can vote in US elections?

I'm unsure about giving this much latitude to congress. I'd rather simply
move to 100% publicly funded elections-with the funds allocated by
citizens chosen by lottery from the voters. Those citizens would be
the only legitimate source of campaign funding-and candidates would have to
go through them.