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April 19, 2011

a constitutional amendment for campaign finance reform

After the Supreme Court's decision in Citizens United v Federal Election Commission, which gave corporations unlimited rights to spend money to influence elections, I am leaning in favor of a constitutional amendment to permit the regulation of campaign finances. The need will be even more pressing if the Court overturns Arizona's system of public funding for candidates, as appears likely.

But it will not be easy to get the amendment right (even imagining that it can pass). Although spending should not be equated with free speech, regulating campaign spending does raise genuine First Amendment issues. Unchecked by courts, Congress could deliberately set the spending limit so low that incumbents would be safe. Or worse, it could ban some groups from spending while setting no limits on others. That is why the Supreme Court should have approved reasonable campaign finance laws (applying First Amendment scrutiny) and allowed us to leave the Constitution alone.

If we must amend the Constitution, I'm not sure I favor the leading proposal, which says: "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." (It also grants similar powers to state legislatures and gives Congress the right to enforce the limits.)

Would this text allow Congress to set a spending limit of $1 and prohibit any advertising? (Given incumbents' ability to send free mailings and obtain free news coverage, they have incentives to set low limits.) Would this text permit Congress to ban newspapers from running articles "in support of" candidates? Perhaps a court would balance the new amendment with the First Amendment, but I am not sure that the plain text cited above would allow such balancing.

I lack the expertise and experience to write a better amendment, but I think it would have to invoke such principles as fairness to challengers and reasonable access to communications media, so that courts could strike down inappropriate limits. Ultimately, I am less enthusiastic about limits than about public funding for campaigns--which is fully constitutional until the Supreme Court says otherwise.

April 19, 2011 11:37 AM | category: none



After a discussion with a Law Professor at Saint Louis U, I completed work on the attached ammendment addressing the issues you raised. At first, I thought a simple act of congress would suffice, then realized the issue of freedom of speech for media (freedom of the press) was so tricky that an ammendment was required. The following contains both my proposed ammendment and explanatory comments. I believe you and I share many sentiments on this subject, but you may find my concentration on baning ALL groups innovative. Posting on your Blog and/or comments by return email will be very much appreciated.

Tom Beebe

St Louis, Mo

314 645 3701


(Commentary in {..}, not part of proposed Amendment}

No candidate for the Presidency or either house of Congress shall accept contributions in cash or in kind from any organization or group of persons for expenses incurred in a campaign for that office. All such contributions shall be made only by individual citizens who shall attest that the funds or other items of value are from their own resources and that they have not received, nor have they been promised, offsetting items of value from any other party in exchange for their contribution. The identity and extent of contributions to such campaigns shall be made public for a period of thirty days from receipt before being employed or used as collateral for a loan by such campaigns. Organizations of any type, {i.e. corporations, unions, gun rights advocates, environmental protection groups, even “Susie’s Flower Shop”, a theoretical small business cited in the Citizen’s United Case,} may, without restriction, expend money to advocate a position on any issue before or likely to come before the electorate insofar as no candidate’s name or description is included in their expressions of advocacy.


{The intent of the above is to bring “transparency” to campaign financing by removing any group from the process whereby that group may conceal the identity of an individual contributor as well as limiting the influence of such groups or “special interests”. It further prevents an organization from making such contributions when an individual within that organization, such as a union member or corporation stockholder, may oppose the candidate. Considering the large equity position in certain corporations that the federal government has recently taken in response to the economic crises, this is particularly important in excluding such influence. The money from “special interest” groups will then go to promote that for which they exist, their “special interest”. The media will be directed to expositions on the issues facing the electorate, thus enhancing discussion and hopefully understanding of issues, bereft of personalities.

April 20, 2011 3:45 PM | Comments (1) | posted by Peter Levine

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