As I watched this video of Senator Bernie Sanders introducing a proposed amendment to the U.S. Constitution, I felt like standing up and applauding and, even though I was the only one in the room as I watched the video, I did stand up and and I did applaud.
Yes, members of Congress. You know it in your hearts that we desperately need to clean up our electoral process because it is arguably the only meaningful issue to be discussed. Why would I say this? Because without getting the money out of politics, we cannot have meaningful national conversations about any serious issue. As Sanders indicates, the current system forces members of Congress to spend most of their time raising money and, worse, it invites big businesses to destroy any member of Congress who dares to rein in abusive business practices. This corruption money=speech system is the reason that Congress is owned by big banks, insurers, telecoms, the military-industrial complex, big pharma and the fossil-fuel industries, and that Congress has repeatedly acted in deference to these industries, in ways that are harming ordinary Americans.
SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.
SECTION 2. Such corporate and other private entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.
SECTION 3. Such corporate and other private entities shall be prohibited from making contributions or expenditures in any election of any candidate for public office or the vote upon any ballot measure submitted to the people.
SECTION 4. Congress and the States shall have the power to regulate and set limits on all election contributions and expenditures, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures.
The text of Sanders’ entire speech can be found at Huffpo. Here’s an excerpt:
I strongly disagree with the Supreme Court’s Citizens United decision.
In my view, a corporation is not a person.
In my view, a corporation does not have first amendment rights to spend as much money as it wants, without disclosure, on a political campaign.
In my view, corporations should not be able to go into their treasuries, spend millions and millions of dollars on a campaign in order to buy elections.
I do not believe that is what American democracy is supposed to be about.
I do not believe that that is what the bravest of the brave from our country fighting for democracy fought and died to preserve.
PoliticusUSA discusses the above proposed amendment, offering this comment:
There is one interesting component to the Saving American Democracy Amendment that makes it different from all of the other proposed amendments and remedies designed to overturn Citizens United. Section 4 of the amendment strikes at the basis for every Supreme Court decision related to campaign finance. Sanders is also taking aim at the 1976 Buckley v. Valeo decision where the Supreme Court ruled spending money to influence elections was a form of protected free speech, and struck down limits on expenditures.
The amendment proposed by Sanders changes this by giving Congress the power to set expenditure limits on individuals, organizations, and candidates themselves. The Saving American Democracy Amendment would return the government back to the people by shutting off the money pipeline from the wealthy and special interests. It is also significant that the amendment limits the amount of money a candidate can give to their own campaign. This means that candidates would no longer have to be millionaires, or grovel at the feet of corporate America and the 1% in order to be able to run.
I agree with everything that Sanders’ proposed amendment attempts to accomplish. I’m concerned, though, that it doesn’t go far enough because it appears to invite “non-profit” organizations to remain financially active in political campaigns. To the extent that this is true, it is an exception that might swallow the rule. Under the Sanders’ proposed amendment, the logical move for a for-profit business would be to donate to a “non-profit” that just happens to advocate for candidates and legislation that benefit for-profit entities. This would give rise to numerous disputes about whether an entity is a legitimate non-profit that happens to be friendly to for-profits, or whether that non-profit is an illegal facade, agent or co-conspirator money-washer or joint venturer of a for-profit entity.
I have not yet considered all of the ramifications of the various constitutional amendments that have been proposed so far. I will need more time to do this. It helps me to understand the Sanders proposal by comparing it to other proposed Amendments that attempt to get money out of politics. I would suggest that anyone concerned about these issues (everyone should be concerned) should also consider all of the ideas being floated, including the approach taken by Move to Amend, which does not limit the scope of its own proposed amendment to for-profit entities. Here’s that proposed language by Move to Amend:
Section 1 [A corporation is not a person and can be regulated]
The rights protected by the Constitution of the United States are the rights of natural persons only.
Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.
The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.
Section 2 [Money is not speech and can be regulated]
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.
Federal, State and local government shall require that any permissible contributions and expenditures be publicly disclosed.
The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.
Nothing contained in this amendment shall be construed to abridge the freedom of the press.
Where the Sanders approach might be too narrow, the Move to Amend approach might be too broad. Do we really want to say that Congress should be able to limit advocacy conducted by all non-profits? I would think that we would want to control only those non-profits that serve as mouthpieces and money launderers for for-profit businesses. Perhaps the Sanders proposed Amendment already makes this clear enough. Is there any pragmatic way to quickly and accurately categorize whether non-profits sufficiently independent or whether they are puppets for businesses?
As the Move to Amend proposal seems to invite, do we really want to allow Congress to limit the expenditures of individuals relating to the political campaigns of others? My own physical voice is rather limited–could the use of a personal blog be considered an expenditure that could be limited under the Move to Amend proposal? These thorny free speech issues suggest the reason that the Sanders Amendment starkly limits its scope to for-profit organizations.
It is important to remember that what Sanders has proposed would become Constitutional law, not mere legislation, and it would strongly restrain further court decisions. The Sanders approach will reverse Citizens’ United. A Supreme Court with integrity would still have some work to do in construing the Sanders Amendment, but it would also understand what needs to be done. I suspect that Sanders took his approach of carving out non-profits because he understands that non-profit organizations are the only meaningful way for most people to be heard. At bottom, under the Sanders approach, the task does seem to be to figure out a way to distinguish true non-profits from faux non-profits. Perhaps this can be done.
I applaud Bernie Sanders for introducing his proposed Amendment. I doubly applaud his speech, because it clearly identifies what most ails the American political system. Hopefully the speech of Bernie Sanders will ignite lots of fruitful discussion on Capitol Hill, though the sad irony is that the waves of corrupt money currently flowing through Congress will likely stifle this critically needed conversation.