Guest Contributor

Colvin on How to Choose a Constitutional Amendment

by PRW Staff — December 22, 2011 - 8:45am
  • Topics: Corporations, Democracy, Election Protection, Politics, U.S. Government
    • Share/Save Share this

    This is a guest post by Greg Colvin, partner at the firm Adler and Colvin, originally published at OurFuture.org.

    There is a growing movement of people fed up with corporations-as-persons, money-as-speech, elections-for-sale in America. They are ready to amend the US Constitution as the only sure way to reverse the Supreme Court's decisions in Citizens United v. FEC and Buckley v. Valeo. But what's the best amendment? Sanders/Deutch or Udall/Sutton? Move To Amend or Free Speech for People?

    Here are twelve questions to put the choice of language in an analytical framework. Every drafter should be able to answer them.

    Twelve Questions for Drafting a Constitutional Amendment

    1. What is the main purpose? Is it to drive the big money, from all sources, out of elections? Or is it to abolish corporate personhood?
    2. If none of the rights extended to corporations are still protected by the Constitution, what would the consequences be -- outside of the realm of elections?
    3. What would happen the day after the amendment was adopted? Would corporate and business spending in elections stop immediately or would legislation and litigation be required?
    4. What kinds of legal entities does the amendment apply to?
      • a. business corporations
      • b. nonprofit corporations
      • c. labor unions
      • d. other forms of organization (associations, trusts, LLCs, partnerships)
      • e. all of the above
    5. How should the campaign spending of individuals (including candidates) be regulated?
      • a. no limits on personal spending
      • b. authorize Congress and the states to set limits
      • c. set dollar limits in the Constitution
      • d. prohibit completely
    6. Should all campaign contributions and expenditures be publicly disclosed? Or should Congress and the states allow small donations to be anonymous? In view of all that secret money that flows through nonprofit groups for political "issue ads," how do we force them to disclose their sources?
    7. Should public financing of campaigns be required, permitted, or prohibited?
    8. Does the amendment cover both candidate elections and public votes on ballot measures?
    9. Are all levels of government covered: federal, state, city, town, and county?
    10. Is any special wording needed to protect freedom of the press?
    11. Should other subjects be covered in the amendment, such as making election day a holiday, shortening the campaign season, simplifying voter registration, requiring paper ballots, addressing voter disenfranchisement?
    12. Should there be two or more amendments to carry different aspects of these issues, or one unified proposal?

      13. ...and of course, is the language as brief and clear as it can be?

    Colvin's Answers

    My answers would be:

    1. Drive big money out of elections.
    2. Takes a lot of legal study to be sure about this.
    3. Immediate effect.
    4. e. - although the business entities are the biggest danger.
    5. b. – use legislation to set limits.
    6. Legislatively, force disclosure of all large donors whose money is used for politics.
    7. Permit.
    8. Both.
    9. All.
    10. No.
    11. No.
    12. One, though some days I think abolishing corporate personhood should be separate.

    This is the sixth piece I've written this year on this subject. In January I proposed a simple version: only citizens can vote, only citizens should finance campaigns. In April I compared the main alternatives offered at that time. In November I pointed out the problems with a single focus on corporate personhood, followed by two blogs praising Deutch and then Sanders for what they introduced -- as the best so far.

    But what I really think we need is for all the proponents to get their ideas out on the table, have a big summit conference, test each approach using criteria such as these twelve, and forge a unified amendment.

    Comments

    Comment viewing options

    Select your preferred way to display the comments and click "Save settings" to activate your changes.

    Constitutional amendment

    Submitted by cswanee (not verified) on January 4, 2012 - 4:29pm.

    I think that one could and should reasonably add prohibitions on lobbying. No corporation (with inclusions as in #4) should be able to influence elections, legislation, or government policy (with some exceptions - Nonprofits whose purpose is to do so should be able to influence legislation or government policy, municipal corporations should be able to have influence over legislation/policy affecting them, any organization should be able to influence legislation/policy directly affecting their specific government contract, and any organization may influence legislation/policy if they are asked to do so.)

    Campaign Contributions

    Submitted by Mikecfly (not verified) on December 27, 2011 - 5:48pm.

    I propose that we should take 5% of all donations and put it somewhere that it may not be touched by anyone, especially government) for 25 years, for every 100.000 donated add another 5%. So if someone wants to donate 1 million, 1/2 of that would go into this fund.
    This fund must be for American people only. If big corp. want to rig elections with their money this would sure cure their appetite

    excellent questions; legal analysis

    Submitted by Batfish (not verified) on December 22, 2011 - 5:06pm.

    As a lawyer I really appreciate the effort to parse through some of the nuances that must be dealt with here. My impression is that revoking corporate personhood goes too far and would have unintended consequences, besides creating a certain degree of judicial chaos. Corporate personhood is a very broad concept that underlies much more than just election spending and lobbying; for example, the "personhood" of corporations arguably enables them to hire employees, have contracts, sue and be sued.

    On the other hand, the filing of Articles of Incorporation certainly creates a legal entity of some sort. So perhaps revocation of personhood would not affect the rights and powers of corporations to engage in ordinary business (see below re: the Bellotti case). But the language of the amendment needs to make clear that certain kinds of corporate activities are useful and preserved.

    The lynchpin should be "the free speech rights of corporations." Under Citizens United, as well as Buckley v Valeo, corporations enjoy first amendment protection in their campaign spending and lobbying. The notion that spending money on political matters is protected speech should be the narrow target. By the way, the same restrictions on campaign spending and lobbying that pertains to corporations will have to apply to individuals as well; otherwise corporations will just have individuals do their dirty work for them. In this sense, revoking corporate personhood does not go far enough. Again, the focus should be "the spending of money on politics does not enjoy the protections of the first amendment." or "...does not enjoy the same level of protection as ordinary speech."

    Justice White's dissent in the Bellotti case is fundamental to this discussion and should be read by everyone involved with this. He makes a distinction between a corporation's primary function and a corporation's lobbying/campaign spending as serving a purpose secondary to a corporation's mission.

    States' rights must be considered. Corporations are creations of states, not the federal government. So the amendment needs to specify that state constitutions may not provide an end-around protection of corporate speech rights.