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
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
VIEW TEXT OF AMENDMENT HERE.
VIEW TEXT OF DEUTCH AMENDMENT HERE.
VIEW TEXT OF MCGOVERN AMENDMENT HERE.
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.
A modified version of this proposal was introduced in 2013 (see below).
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 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 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.
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.