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Campaign Finance and Constitutional Amendments

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"Corporations are not people!" This is the cry of those who seek a constitutional amendment to take corporate Political Action Committee (PAC) money out of campaign financing. The "pay to play" aspect of political influence has gotten out of hand. Even when bashing corporations, politicians seek financing from unions, for profit, and not-for-profit corporations. Most money businesses give to traditional PACs goes to incumbents from both parties. According to FEC data from Opensecrets.org, (http://www.opensecrets.org/pacs/index.php) in the 2010 elections traditional PACs gave $238,450,722 to Democrats and $181,565,844 to Republicans -- a 57 to 43 percent split. By mid-2010 -- after the Citizens United v FEC decision, unions had spent $9.7 million, individuals, $6.4 million, and corporations, $3.4 million. See also http://reporting.sunlightfoundation.com/outside-spending/noncommittees/

However, an amendment to the Constitution may not be the best method to address the situation. Over 10,000 constitutional amendments have been proposed by Congress over the years. Twenty-seven were adopted. That is a success rate of about 0.27 percent.

There is also more to examine.

First, corporations are legal "persons." Legally, the corporate form allows an entity to sue or be sued while shielding the individual members (i.e., shareholders, members of the NAACP, Sierra Club, etc.) from personal liability for debts and damages. Legal corporate personhood allows corporate regulation.

Second, the Citizens United decision held that the First Amendment prohibited the government from restricting independent political expenditures (via Political Action Committees) by corporations and unions. It also upheld requirements for public disclosure by sponsors of advertisements. Union advocates argue that unions are different -- they are associations of people. But corporations are also associations of people, i.e., shareholders. Both are associations of people, headed by their respective CEOs trying to advance their respective group's interests.

Third, some of the proposed amendments are more of a political statement than serious amendments. Move to Amend proposes that all artificial entities shall have no constitutional rights. (What about the Article IV, Section I Full Faith and Credit [to contracts] clause?). Senator Bernie Sanders' (I-VT) proposed an amendment that seeks to ban only for-profit corporations from campaign contributions. Indeed, Citizens United was a not-for-profit corporation. Common Cause, and many other groups advocating a constitutional amendment are corporations! They would be banning their own speech.

What is the answer?

I thoroughly agree with decreasing the power of big money in federal campaigns. PACs allow pooling of large sums. Smaller donations presumably do not lend themselves to corruption as readily as large donations. A nonpartisan like me has the most to gain from limiting big money. However, I also have the most to lose if my First Amendment rights are infringed. A key purpose of the First Amendment is to allow people to associate and assemble, i.e., collectively express and pursue common interests, to amplify their voices to seek redress from the government.

Arguably, the government has a compelling interest in eliminating PACs and giving the people their individual voices back. On the other hand, some PACs are made up of those ordinary folks who otherwise would have no voice. How can we choose only to silence one subset of voices? As the ACLU has noted, the first target of censorship is rarely the last.

The first legislative reaction to Citizens United was the Democracy Is Strengthened by Casting Light on Spending in Elections Act (DISCLOSE Act), which passed the House in June 2010 and failed to win enough support to come to the Senate floor for a vote. One problem with the DISCLOSE Act is the case of NAACP v. Alabama where the Supreme Court held that the NAACP did not have to disclose is members because it would suppress freedom of association. The ACLU has noted that "[t]he bill would severely impact donor anonymity, especially for those donors who give to smaller and more controversial organizations.

I believe a better path is true public financing -- every candidate starts each election with a zero balance. In the meantime, we should seek better enforcement of existing laws by the Federal Elections Commission and the Internal Revenue Service. Regulations on corporate speech, just like limits on speech by individuals, have to be justified as serving a valid public purpose. Limiting corruption and ensuring transparency may be those purposes.

Currently the disclaimer on union, corporate, and advocacy group ads is 4 seconds long and "readable." Why not make the disclaimer on ads longer, in larger print and specifically state that it is an ad by a self-interested group who wants to influence Congress?


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