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COMPARISON OF PROPOSED AMENDMENTS



Increasingly, people are recognizing that even if Congress has the power to pass legislation to restrict the flow of corporate money in campaigns, they will continue to be unwilling to use it unless the practice is banned outright by a constitutional amendment.

The failure to even pass legislation to disclose the source of such funding is adequate evidence of that, should anyone doubt it. In addition, honest attempts to create a level playing field through public financing have been undermined by the same activist Supreme Court that decided Citizens United in 2010 and McCutcheon in 2014.

There are many amendments that have been proposed whose sponsors believe will abolish corporate personhood and/or declare that money is not free speech. Here is a discussion of the problems with the various types of resolutions that have been introduced in Congress to date and of another that is proposed to address these problems.

A number of cosponsors of these resolutions have cosponsored others. It is our job as citizen lobbyists to encourage them to support a final amendment incorporating the best features of the various proposals. I hope that this analysis will be helpful in deciding for yourself what these features are.

AMENDMENTS INTRODUCED IN THE 212th CONGRESS


EDWARDS-STYLE AMENDMENTS TO GIVE CONGRESS THE POWER TO REGULATE CORPORATE "FREE SPEECH"


The 2010 Donna Edwards amendment is the prototype of a group of amendments that would if passed give Congress the power to regulate corporate money in campaigns. Congress had this power before Citizens United but declined to use it to end this corrupting practice. There is no reason to think that a Congress now even more thoroughly corrupted by corporate money would use that power if it were to pass.  

More importantly, by stating that Congress can regulate campaign contributions without banning corporate campaign expenditures, the idea that corporations have a "right" to influence elections could be enshrined in the constitution. There is a real danger of this happening. Members of Congress are beginning to realize that the People are demanding that they overturn Citizens United, at a minimum. Passing such a weak amendment would be a gesture likely to convince a public unaware of the distinction that Congress is doing the "only politically possible" thing. Our goal must be to change what is politically possible by passing a strong amendment.

An Edwards-style amendment would likely do little beyond causing the amendment movement to lose steam, much as the single payer movement was derailed in 2009 with the announcement that Democratic leadership would fight for a public option in the health care reform bill that became the "Affordable" Care Act. As you will recall, the public option was removed from the final bill, leaving what can at best be called a bailout for a failing medical insurance industry. We cannot settle for another bait-and-switch on this issue, which is at the heart of all the other issues that Congress is not addressing.

The practice of corporations asking for and getting toothless regulation to avoid the danger of real regulation has a long history of success. As another example, corporate tools in Congress have routinely passed regulation to allow dangerous levels of poisons to be spewed into the environment in the guise of "protecting the public" by putting specific limits on pollutants that the polluters can live with.  This serves to protect the polluters by approving the dumping of dangerous chemicals in the air, water and soil.

The only way to assure that corporate polluters will be taken to task, a real debate on universal health care takes place and Congress will deal with the other pressing problems facing America and the world is to weed out those who put corporate interests over those of the People. We can do that by making support for a strong amendment a litmus test for our votes in every congressional race.

VIEW TEXT OF THE EDWARDS AMENDMENT HERE.

NOTE: TEXT OF THE EDWARDS AMENDMENT IS NOT IDENTICAL TO THE OTHERS BUT ALL ARE RESTRICTED TO GIVING CONGRESS THE POWER TO REGULATE.


YARMUTH/JONES AMENDMENT
STATES THAT MONEY IS NOT FREE SPEECH AND AUTHORIZES PUBLIC FINANCING

At this writing, this is the least known of the amendments despite (or perhaps because) of the fact that it is a bipartisan effort to address the issue of money in politics, sponsored by Congressmen Walter Jones (R-NC) and John Yarmuth (D-KY). It explicitly states that money is not speech, theoretically empowering Congress to regulate it. It further explicitly authorizes Congress to establish a mandatory system of public financing. Finally, it creates a federal holiday for the purpose of voting in federal general elections.

The principle problem with this bill is that by itself it would leave things largely unchanged until such time when members of Congress might decide to give up the system by which they ascended to office. In addition, it does not explicitly state that corporations are not people. Under the Supreme Court doctrine that they are people under the Fourteenth Amendment they could continue to assert all the constitutional rights of human beings subsumed under the concept of corporate personhood. This includes the Fourth Amendment "right" to avoid surprise inspections by regulatory agencies tasked with protecting public safety, among other things.

VIEW TEXT OF AMENDMENT HERE.



DEUTCH/SANDERS AMENDMENTS TO LIMIT CORPORATE PERSONHOOD TO "NONPROFIT" CORPORATIONS

At the time of this writing, the 2012 Sanders proposal was perhaps the best known of all the resolutions calling for a constitutional amendment. Also known as "The Saving American Democracy Amendment," it was essentially identical to the one introduced earlier in the House by Ted Deutch (D-FL). It declared that for-profit corporations do not have personal rights and that they cannot donate to political campaigns or ballot measures. It also allowed Congress and the States to set limits on personal expenditures in such campaigns and to require disclosure of sources of funds to campaign committees whose operation they would regulate.

The Sanders resolution received a lot of publicity due to Senator Sanders' reputation for representing people over corporations. Because of this, it was not widely scrutinized by his fans or the alternative media. This resulted in many people being slow to recognize its serious problems.

These amendments attempted to curb corporate spending without affecting the ability of unions or 501.c4s to influence elections. In carving out an exception for nonprofits to a ban on corporate contributions, the claim that they would have "prohibited corporate spending in all elections" was undermined. Citizens United itself was incorporated as a 501.c4 "public interest" nonprofit. Such nonprofits are allowed to lobby and to participate in political campaigns and elections without revealing the source of their funding. If the disclosure requirements of campaign committees do not apply to these "public interest" nonprofits, corporations can continue to spend money indirectly to influence elections without fear of exposure.

Excluding union treasury funds from a ban on corporate money in elections is not justifiable on philosophical or practical political considerations. If corporations are formed by associations of people who join together in their own self interest then so are unions, which are usually incorporated. Failure to admit this will guarantee the principled opposition of those who believe, rightly or wrongly, that unions have too much power in elections. Regardless of the truth of this supposition, it makes no sense to have this fight when many union members are concluding that the politicians their money has been supporting no longer serve their interests.
VIEW TEXT OF DEUTCH AMENDMENT HERE.


MCGOVERN AMENDMENT DECLARING THAT CORPORATIONS ARE NOT PEOPLE

Also known as "The People's Rights Amendment," the amendment proposed by Representative Jim McGovern (D-MA) states that corporations are not people and are subject to regulation by the States and federal government.

The McGovern amendment would not address the issue of whether money is free speech. It thus does not address campaign finance, which many consider the more important of the two reforms being addressed in the various resolutions. Although the protections afforded corporations under the doctrine of corporate personhood would be removed, it would still be up to Congress and the States to impose limits on campaign expenditures of for-profit corporations, unions and "nonprofits" that routinely engage in political campaigns designed to influence elections, in violation of their charters.

VIEW TEXT OF MCGOVERN AMENDMENT HERE.


 KUCINICH AMENDMENT TO ESTABLISH FEDERAL SYSTEM OF PUBLIC CAMPAIGN FINANCE


In January 2012 Representative Dennis Kucinich (D-OH) introduced an amendment that would eliminate all private donations to campaigns for national office. It would replace this by requiring the establishment a system of federally funded elections. This is an entirely new approach to addressing the problem of special interest money influencing the outcome of elections. If passed, it would effectively overturn Supreme Court decisions that have undermined public financing laws in Arizona and Vermont.
 
This amendment would effectively establish that money is not free speech and that corporations and other special interest groups cannot contribute to elections.

While the Kucinich resolution would definitely solve the problem of special interest money in politics, it does not address the issue of abolishing "rights" granted corporations by the Supreme Court that have nothing to do with the legitimate needs of businesses and generally do not serve the public interest. In the early days of the Republic, demonstrating  that a corporation would serve the public interest was a requirement to obtain a charter from a State.

Criticisms of this amendment include:

1) Many groups and individuals in the abolition movement are adamant that if they are going to devote the effort needed to pass an amendment that it must explicitly abolish corporate personhood. This includes Move to Amend, the largest coalition of abolitionist groups.

2) Another practical reason to include abolition of corporate personhood is that many of the supporters of an amendment are attracted by the slogan "Corporations are not People!"

3) Without specifics of how the system would be administered, the Kucinich amendment will encounter unnecessary resistance. A public finance system in Portland, Oregon was struck down by voters for for a variety of reasons, including voters who were unhappy with the ease with which marginal candidates could obtain public funds.

4) Many people who do not object to special interest groups being barred from contributing to political campaigns will not want to lose the ability to choose who among candidates to financially back. This was another of the arguments used to defeat the Portland system.
 

VIEW TEXT OF AMENDMENT HERE.


MOVE TO AMEND PROPOSAL TO ESTABLISH THAT CORPORATIONS ARE NOT PEOPLE AND MONEY IS NOT FREE SPEECH

Move to Amend has proposed an amendment that would address most of the shortcomings of all the resolutions that were introduced in the 112th  Congress. It explicitly states that corporations are not people, that money is not free speech and that ALL entities established by the laws of the US, the States or foreign governments are subject to regulation through federal, state and local law. It establishes that corporations have no rights under the constitution and that no privileges granted these associations by governments is inherent or inalienable. Like the Deutch/Sanders amendments, it allows Congress to regulate individual donations. It also covers ballot measures and requires that all contributions must be publicly disclosed.

The major problem with the amendment is that it does not make contributions by corporate entities illegal. Instead, it states that:
"Federal, State and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, for the purpose of influencing in any way the election of any candidate for public office or any ballot measure."

It may seem to follow logically that if corporations are not people and campaign cash is not protected as free speech then corporations and other special interest groups should not be allowed to contribute to political campaigns. However,  it will be up to Congress and the courts to decide that. A growing number of people are arguing that if we are going to solve the problem through an amendment, it should include an explicit ban on expenditures in elections by all "special interest" associations as well as well as empowering Congress to limit individual campaign expenditures.

A modified version of this proposal was introduced in 2013 (see below).


A PROPOSAL TO ABOLISH CORPORATE PERSONHOOD, END BUNDLED PRIVATE MONEY IN ELECTIONS AND CONTROL LOBBYING

The following language is designed to incorporate the best features of the previous amendments and to also address the other method by which corporate money can be used to corrupt elected officials; the promise of well-paying jobs in private industries which they have the duty of regulating while in office.

While the wording of this proposed amendment is subject to debate, it is intended to abolish corporate personhood, establish that it is illegal for any state-created entity to contribute to political campaigns or ballot initiatives and to remove incentives for lobbyists and members of Congress to put the interests of corporations over those of We the People.

SECTION 1. The rights, responsibilities, and privileges granted to “person” or “persons” as enumerated in this Constitution, its amendments, and extended through case law are exclusively reserved for human beings.

SECTION 2. All non-living entities established by law in the United States shall be subordinate to any and all laws enacted by the people and their elected governments. Corporations shall be defined as  “persons” only for the purposes of contracting, suing, being sued, transacting business and continuity of operations as people come and go, as defined under state and federal law. Corporate charters do not limit the liability of officers of corporations or board members from criminal prosecution for acts authorized by them on behalf of the corporation.

SECTION 3. No non-living entity may donate to political campaigns directly or indirectly. All donations must come from the personal assets of individuals or via public funds expressly authorized by law to be used for that purpose.   Congress and the states shall limit or abolish individual donations or other expenditures intended to influence the outcome of elections.

SECTION 4. No corporation shall pay, contribute or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.


SECTION 5. No employee of the federal government, including elected officials, shall enter into employment or contractual arrangement with any corporate entity that is subject to regulation by the branch of government or department in which that employee serves, for a period of ten years following the end of their term of federal service, nor shall anyone who has derived the majority of his or her income in any manner from a corporate entity or industry in the 10 years prior to federal employment participate in decisions regarding regulation of that industry or corporation.
SECTION 6. Nothing contained herein shall be construed to abridge individual rights of freedom of speech, freedom of the press or other inalienable rights of the People.

SECTION 7. Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.



Having failed to make support for any of the proposed amendments or an alternative the central issue in any campaign in 2010 (to my knowledge), none of them gained significant traction. However, some of the sponsors are listening to critics and working to improve their amendment proposals. A slightly modified version of the MTA proposal has been introduced into the House as well.



AMENDMENTS INTRODUCED IN THE 2013th CONGRESS


REVISED MCGOVERN AMENDMENTS

In response to concerns about the original McGovern Resolution not addressing campaign finance, McGovern introduced both a slightly revised version of his 2012 amendment abolishing corporate personhood and a second resolution that would allow both the federal and state governments to limit campaign expenditures.

HJR 20 allows the federal government and states to regulate campaign finance regulations. It empowers Congress to set limits on both direct and indirect campaign expenditures but implies that Congress has powers to impose other regulations.
 
HJR 21 is essentially identical to the original resolution. It includes the puzzling phrase "corporate entities are subject to such regulation as... are (sic) otherwise consistent with the powers of Congress and the States under this Constitution." This appears to many to be a non sequitur, implying that the Supreme Court can limit such powers, as it has in dozens of decisions that would be overturned by an end to the doctrine of corporate personhood. HJR 20 explicitly states that Congress has the power to implement the amendment through legislation, thus limiting Supreme Court purview over campaign finance laws.

Taken together, HJR 20 and HJR 21 would have a general effect similar to the Nolan/Pocan amendment, but without a requirement for full disclosure, explicitly allowing limits on a candidate's own expenditures or being applicable to ballot measures.

The presumed advantage of introducing two amendments is that should either component be too controversial, the other would still have a chance of passage. Others consider this a disadvantage, arguing that with the difficulty of passing an amendment in the first place, both abolition of corporate personhood and campaign finance regulation should be included.

As with all other resolutions thus far, this amendment would not explicitly ban corporate campaign contributions. Exactly what constitutes "regulation" of campaign finance would be interpreted by Congress and the courts.

READ HJR 20 HERE.

READ HJR 21 HERE.


NOLAN/POCAN AMENDMENT

HJR 29 is based on the original Move to Amend proposal, with minor modifications. The same criticisms of the resolution apply.
VIEW TEXT OF AMENDMENT HERE.

REVISED SANDERS AMENDMENT


The Sanders amendment is unique among resolutions introduced in Congress thus far. It is the first to incorporate the idea of explicitly banning corporate campaign contributions, whether from for-profit corporations or general union funds which members do not vote to direct to specific candidates or PACs. This is a key element
 proposed in the model amendment above in 2012 that is missing in the Nolan-Pocan amendment, although it falls short of ending PACs altogether. Disappointingly, the provision in the 2012 version to abolish corporate personhood was dropped in the new resolution.

According to the chief legislative aide working on the amendment, there was concern expressed among senators working with Sanders of "unintended consequences" of declaring that corporations do not have the constitutional rights of humans. This concern was echoed by Senator Merkley's aides and remains an important area of continuing debate. Presumably, hesitation in endorsing abolition led McGovern to reintroduce his original amendment separately from his resolution for an amendment to reform campaign finance. 


As in the first bill, the language includes a clause that some believe may inadvertently doom it. It calls for a seven year window for ratification, which is not a requirement of the constitution. Some feel this is insufficient time to assure ratification by 38 states. While it seems to be a superfluous and possibly harmful aspect of the bill, it is likely that by the time we have a Congress in place ready to deal with campaign finance reform definitively, it will be hard to find more than 12 state legislatures willing to oppose it.


VIEW THE SANDERS AMENDMENT HERE.







9 comments:

  1. Ban corporate lobbying and stop the daily influence of the corporations!!! It is unconstitutional! If corporations are not people, 'it' should not be able to lobby as 'it' has done for 180 years. Corporations lobby under the 'People's right' to petition which is guaranteed by the First Amendment... they are not people. Therefore, corporations should not be allowed to lobby, period. Lawmakers listen to lobbyists before People, that is the tool used to grease the wheels, and since we can't always afford to hire a lobbyist, corporate lobbying infringes on OUR First Amendment.

    Any amendment that says corporations are not human beings should technically end corporate lobbying (unless they specifically state otherwise).

    HELP WANTED: LOBBYIST TO LOBBY TO END LOBBYING:
    http://saynotocorporateamerica.blogspot.com/2010/10/help-wanted-lobbyist-to-lobby-to-end.html

    I WANT TO HIRE A LOBBYIST TO END LOBBYING!
    http://saynotocorporateamerica.blogspot.com/2010/10/i-want-to-hire-lobbyist-to-end-lobbying.html

    ReplyDelete
    Replies
    1. I shared your opinion until I thought it through. The Supreme Court has clearly stated that corporations are not people and that money is free speech. If you say both are false, all they have to do is to invent another rationale to keep money flowing to their political allies and rule any such clarifying legislation unconstitutional.

      Delete
  2. I was only suggesting an additional means to get the corporate influence out of politics. In addition to getting the endless $$ out of elections, I believe we need to BAN corporate lobbying... it is daily and it is powerful. Three out of four lobbyists previously worked for the federal government. Ban on corporate lobbying would also stop those jobs that are probably nothing more than mere paybacks for favors by government workers.

    Corporate influence has been building since the corporation first began to lobby. It needs to stop! Who knows, maybe it will block the corrupt bankster from the honest politician.

    Getting ALL of the corporate money out of elections would be great but it won't get the corporation out of politics, even if you stop every penny in every election, because of corporate lobbying. It's one more angle we need to block. I have not found any legal case that challenged the unconstitutionality of corporate lobbying. That may be another approach.

    ReplyDelete
  3. I agree completely. If you look at my proposed amendment you will see that it does effectively ban any reward for talking to lobbyists by imposing a 10 year moratorium on any member of Congress or their staffers in industries regulated by any committee the member sits on. It also bans hiring any staffer who worked in such an industry within the last 10 years and members who have worked in such industry within the last ten years from sitting on such committees.

    ReplyDelete
  4. Regarding lobbying... Can we not assert under the Constitution that only citizens, human beings, have the right to petition government... so all corporate lobbying would be punishable by law.

    ReplyDelete
  5. there's a lot of material here to comment on.

    The main problem for me is with MTA's Amendment and getting it to eliminate 'states and local govmint' will also be charged with who and what = speech. I don't want any loop holes for States Rights or local yahoos to be fn'g with the Amendment once passed.
    But we've a ways to go and i'm sure it'll get ironed out.
    We cannot leave it to Cong Critters to decide when and if they'll regulate campaign finance.
    thanks to Rick and SFPI for the analysis of our current options.

    ReplyDelete
  6. Thanks for reading and commenting, Dan and Darwin. I hope you will share this link with others.

    Regarding corporate lobbying, I suppose that it would be possible to restrict it by eliminating any tax deductions for lobbying expenses, but to say that only individuals could lobby using their own money would cripple legitimate nonprofits and ensure that only the wealthiest corporate lobbyists would be heard. I think it better to remove the incentives for legislators to listen to lobbyists by taking away their two main sources of influence; campaign bribes and lucrative jobs in private industry (especially lobbying jobs).

    Darwin, I think that the MTA version is okay as far as it goes, but it fails in not explicitly banning corporate campaign contributions, among other things. If these were banned at the federal level states could decide to more restrictive, but could not be less.

    ReplyDelete
  7. I think we need to get to the root of the problem with an amendment that drecognizes the inherent evil of allowing special interests (corporate entities of ALL sorts- notably media) to rule by propaganda and extra-legal influence, the majority's right to learn the truth in all things that affect our lives. Therefore: my Draconian version of a remedial 28th Amendmentdesigned to keep them in a publicly mandated Constitutional box:

    "Corporations are not persons in any sense of the word and shall be granted only those rights and priveleges that Congress deems necessary for the well-being of the People. Congress shall provide legislation defining the terms and conditions of corporate charters according to their purpose; which shall include, but are not limited to; 1 prohibitions against any corporation becoming so large its failure would pose a threat to national security or harm the general economy, 2 prohibitions against any form of interference in the affairs of government, education, and news media, and 3 provisions for civil and criminal penalties to be paid by corporate executives for violation of the terms of a corporate charter."

    Leave the details for the State courts and the wisdom of our jury pool to decide how guilty these corporate oligarchs are and how long their jail terms should be.

    ReplyDelete
  8. I think we need to get to the root of the problem with an amendment that recognizes the inherent evil of allowing special interests (corporate entities of ALL sorts- notably media) to rule by propaganda and extra-legal influence, the majority's right to learn the truth in all things that affect our lives. Therefore: my Draconian version of a remedial 28th Amendment designed to keep them in a publicly mandated Constitutional box:

    "Corporations are not persons in any sense of the word and shall be granted only those rights and priveleges that Congress deems necessary for the well-being of the People. Congress shall provide legislation defining the terms and conditions of corporate charters according to their purpose; which shall include, but are not limited to;
    1 prohibitions against any corporation becoming so large its failure would pose a threat to national security or harm the general economy,
    2 prohibitions against any form of interference in the affairs of government, education, and news media, and
    3 provisions for civil and criminal penalties to be paid by corporate executives for violation of the terms of a corporate charter."

    Leave the details for the State courts and the wisdom of our jury pool to decide how guilty these corporate oligarchs are and how long their jail terms should be.

    ReplyDelete

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