At Slate, Lawrence Tribe has offered a new innovative approach to amending the U.S. Constitution with regard to election reform. Tribe’s proposed amendment is especially valuable, because it doesn’t obsess over neutralizing Citizens United and it doesn’t simplistically demonize corporations (to the exclusion of other people and organizations that warp the election — especially super-rich individuals and shell organization that hide the identities of the donors). Tribe takes serious aim at expenditures, rather than focusing only on contributions. Here is the text of Tribe’s proposed amendment:
Nothing in this Constitution shall be construed to forbid Congress or the states from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures. Nor shall this Constitution prevent Congress or the states from enacting systems of public campaign financing, including those designed to restrict the influence of private wealth by offsetting campaign spending or independent expenditures with increased public funding.
Tribe proposed language focuses on a critically important point. The vast pools of unregulated money flowing into the system don’t merely distort the natural outcomes of elections; they also distort access to politicians between elections:
Expenditures to support or oppose political candidates, however nominally independent—and lately, the purported independence of super PACs has become a national joke—in practice afforded wealthy people and corporations grossly disproportionate access to holders of public office.
Therefore, anyone worrying only about the outcome of elections is missing much of the story. Tribe also argues that proposed amendments declaring that money is not speech miss the mark:
I am not prepared to abandon all First Amendment scrutiny of regulations imposed on financial backing of political expression. What’s crucial is that regulations treat content neutrally, regardless of whether they address speech itself or the funding of speech, and regardless of the speakers at which they aim.
Additionally, as I reported here, the United States Supreme Court has, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, prohibited states from leveling the tilted playing field with public funding. Tribe’s proposed amendment also addresses this huge problem.
It’s not likely that the U.S. Supreme Court will reverse Citizen’s United, not when Justice Anthony Kennedy “infamously claimed in Citizens United that ‘independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.’” Tribe points out the lunacy of this belief, recognizing that big money buys special access. He urges that it is time for a new groundswell of united citizens to demand “commitment to equality of political influence.”