Schrader introduces constitutional amendment on campaign finance
Kari Chisholm
Today, Congressman Kurt Schrader introduced a constitutional amendment as a response to the recent Citizens United v. FEC decision that opened the floodgates to corporate independent expenditure campaigns. From his statement:
“In America access to money should not equal free speech,” said Schrader. “No special interest with access to unlimited financial resources should have the ability to use those resources to determine the outcome of an election.”
“While I am a cosponsor of the DISCLOSE act, which addresses the Citizens United decision, I am concerned that it does not go far enough,” said Schrader. “My amendment will provide a solution to the long-term impacts of the Supreme Court’s decision by clarifying Congress’ and the States’ authority to protect free speech without the corrupting influence of big money in politics.”
On the jump, the full text of what would become the 28th Amendment to the U.S. Constitution, as proposed by Rep. Schrader.
Article
Section 1. The Congress shall have power to prohibit, limit, and otherwise regulate the contribution of funds or donation of in-kind equivalents to candidates standing for election to a federal office in the United States and to prohibit, limit, and otherwise regulate the expenditure of funds or donation of in-kind equivalents used to support or purchase media advertisements intended to influence the outcome of an election for federal office in the United States.
Whenever Congress should exercise such power, it must apply equally and uniformly to all individual persons recognized as citizens of the United States.
Whenever Congress should exercise such power on associations of citizens of the United States, it must apply equally and uniformly to all associations of citizens of the United States.
Section 2. Each of the several States shall have power to prohibit, limit, and otherwise regulate the contribution of funds or donation of in-kind equivalents to candidates standing for election to public office in the State and to prohibit, limit, and otherwise regulate expenditure of funds or donation of in-kind equivalents used to support or purchase media advertisements intended to influence the outcome of an election for public office or plebiscite in the State.
Whenever a State should exercise such power, it must apply equally and uniformly to all individual persons recognized as citizens of the State.
Whenever a State should exercise such power on associations of citizens of the State, it must apply equally and uniformly to all associations of citizens of the State.
Section 3. No person who is not a citizen of the United States, association of persons not citizens of the United States, foreign governments, or persons acting as agents thereof may contribute funds or donate in-kind equivalents to candidates standing for election to public office in the United States or otherwise expend funds or donate in-kind equivalents in a manner intended to influence the outcome an election for public office or plebiscite in the United States.
The Congress shall have exclusive power to enforce this section by appropriate legislation.
Section 4. Congress shall have the power to enforce this article by appropriate legislation.
To become the law of the land, Schrader's amendment would require a two-thirds vote in the House and the Senate followed by ratification by the legislatures of at least 38 states. His resolution puts a seven-year time limit on ratification (as is now customary.)
Discuss.
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2:14 p.m.
May 13, '10
Whoa. Interesting. I will be getting more info about this ASAP.
this is going to be a heavy lift as he knows. And some feel we should be doing an amendment about corporate personhood, but at first glance, the first section seems to address the Buckley v. Valeo decision that equates money to speech.
2:22 p.m.
May 13, '10
But that (money does or doesn't equal speech) is also the rub. When does say running a website cross the threshold into in-kind equivalents to a dollar based expenditure?
While I think the goals are laudable, I have concerns about making sure we not stifle true individual and collective advocacy in an era where net-roots and other offline organizing and advocacy may fall into the same bucket as what is viewed as tantamount to bribery via election buying.
2:17 p.m.
May 13, '10
I know the polling int eh immediate fall-out from the Citizens United ruling put somewhere in the neighborhood of 70% disapproval of the ruling (across party lines I might add), any amendment always faces a severe uphill climb.
I think that giving Congress and state legislatures the power to curtail what amounts to basically institutionalized bribery is good on the whole. However my concern is always about language such as the "in-kind equivalents". What does and doesn't fall into that bracket? This were I find restrictions potentially problematic. Particularly as it pertains to the ever blurring lines of what media is in the internet, net-roots activist era.
How do you move to end the buying of elections via special interests without damaging legitimate grassroots advocacy?
3:26 p.m.
May 13, '10
Wow! This would not only be the first constitutional limitation of the First Amendment, it would by its Section 2 supersede the constitutions of the 50 states, specifically Oregon's, where voters rejected an amendment allowing limits on campaign contributions not too long ago.
The empowerment of Congress and the respective state legislatures to regulate political donations is sweeping and not simply limited to corporations and unions but individuals (including candidates themselves) as well.
I think this is a bad proposal, and my guess is that it will prove to be bad politics for Schrader.
3:41 p.m.
May 13, '10
No it wouldn't.
It would allow the states to determine what if any contribution limits for state level races it want's to impose (or not).
7:35 a.m.
May 14, '10
But the Oregon constitution, as intelrpreted by our Supreme Court on more than one occasion, does not allow limitation on campaign contributions. Schrader's amendment overturns the Oregon constitution and allows the states to limit and regulate political contibutions.
10:29 a.m.
May 14, '10
It does not compel any state to set limits and leaves it up to the states. It is analogous to a Federal ammendmeant which says states can set there own speed limits if they choose too, and Oregon saying we can't or won't set any speed limit. It simply does not follow.
That said, the Oregon Courts have not in fact ruled that limitations on Federal races is a violation of the Oregon Constitution. Furthermore, I disagree with the Oregon Courts interpretation of free speech protection. Allowing institutionalized broidery is not free speech or expression. Such a expansive interpretation (which the Oregon court has held) is insane. Money is not speech nor is all speech sacrosanct. Otherwise all liable or slander law is null and void in the state. Furthermore one could argue that any laws restricting bribery of officials is a limitation on "speech".
Given that in Federal races, a candidate is not required to give back campaign donation and can retire and take his or hers war-chest with them, how is unlimited campaign contributions anything but codified bribery?
10:53 a.m.
May 14, '10
The states have no jurisdiction over funding for federal races so the Oregon Constitution doesn't apply. I respect your right to disagree with the Oregon Supreme Court but that doesn't change the fact that this amendment, if ratified, would overturn their decision and, in effect, supersede that provision of the Oregon Constitution as interpreted by our state supreme court.
11:56 a.m.
May 14, '10
That's nonsense Jack. This amendment would not compel states to do anything to limit contributions nor would it override the Oregon Supreme Court on the matter. IN fact, Section 2 of this amendment actually preserves state's rights on the matter since most states, unlike Oregon do have there own limits on contribution in state races. The only way that you could legitimately read section 2 as impinging on state authority on the matter is that it calls for uniformity on any limits a state might impose.
Are you suggesting that uniformity in application of regulations is a violation of constitutional principals (be it US or Oregon Constitutions)…?
1:21 p.m.
May 15, '10
Hmmm... As I read Section 2, I think Jack is right -- it would override Oregon's constitutional ruling against contribution limits.
That said, I think Mitch is still right; nothing here compels Oregon to set limits.
But that would become a policy question, not a constitutional one.
And, given Oregon voters' propensity to support campaign limits, I suspect we would have limits fairly quickly.
(In fact, some might argue that existing laws on the books that had previously been overturned might become law. Any precedent on that? I don't know.)
5:56 p.m.
May 15, '10
How would it override it?
It does not compel, and it leaves it to the state to self-determination. And in in our case, the Oregon Constitution (as interpreted by the Oregon SC) says we can't limit it. Though we could change our state's Constitution if we as a state so choose if we want limits.
The state leg. is still bound to have to operate within the Oregon Constitution.
This amendment would not render the relevant components of the Oregon Constitution dead-letter which is what in essence Jack seems to be arguing.
This amendment empowers states to set what limits they choose (as long as it is applied equally). We as a state have set that limit within our state's Constitution, in our case to zero. If we as a state choose to modify that limit, we can change it via modification of our Constitution, and this amendment would only compel that any limits we set via such modification must be applied equally.
10:18 p.m.
May 15, '10
Hmmm... Yes, I suppose I don't know enough about the legal basis for the Oregon Supreme Court's ruling.
I had assumed it was on their reading of the First Amendment in the U.S. Constitution. If so, this amendment would overturn that.
But if it's based on their reading of the free speech clause in the Oregon Constitution, then I suppose it's much more likely that they'd continue to override legislative limits on contributions and expenditures.
6:33 p.m.
May 13, '10
It might be the first "constitutional" limitation of the 1st amendment, but courts, congress and the states have imposed all kinds of crazy limits over the past 200+ years. Since the current SCOTUS seems hell-bent on equating money with speech, the only way for Congress to take back the power to regulate political expenditures that the SCOTUS has taken away is with an amendment such as this.
So, instead of making doom and gloom pronouncements, how about you answer a simple question:
Do you believe that political contributions and expenditures should be free of any and all limits?
9:39 a.m.
May 14, '10
I agree with you on what the focus should be.
"Hell, no", is my answer! I would like to see an attempt to limit ALL contributions to registered voters, contributing to contests they will actually vote on.
I suspect politicos of ALL stripes hate that idea equally. It separates the sheep from the goats, tho.
5:09 a.m.
May 14, '10
Well, now, Jack, Section 2 doesn't do what you say it does at all. The proposed amendment itself IS defective in that it doesn't specifically state that corporations are neither persons nor entitled to make direct donations to candidates -- that intent is arguably there though. Unfortunately, it is that particular point which is central to the whole debate over participation by corporations.
That point must be stated specifically in order to withstand the power of the judiciary to choose to disregard implications that are only arguably presented. The myth of corporate personhood has to be squelched in definite terms.
7:42 a.m.
May 14, '10
I disagree, Lee, on both points. Section two authorizes states to limit and regulate campaign contributions, overturning our state supreme court's interepretation of the Oregon constitution that contributions are political speech and hence cannot be regulated by the state.
I also see nothing in Schrader's amendmnt that addresses the treatment of corporations--or unions--as "persons" for constitutional purposes. Instead, it basically takes political contributions out of the free speech protection for everyone and gives the legislative branch carte blanche to regulate it as long as it does so in a uniform, nondiscriminatory matter.
I don't think this view is necessarily unreasonable and in many ways is better than the assault on corporate personhood, which actually dates back to the 19th century, but I do think it will prove controversial.
10:34 a.m.
May 14, '10
But it doesn't take away free speech protections. You, and I, and those who work within corporations (as I do) would still free to speak, even politically.
Inducing a politician to hold a position or vote a certain way by giving them money (i.e. bribery) is not free speech.
10:55 a.m.
May 14, '10
I guess it's too bad Obama didn't nominate you to the Supreme Court then because the court's have always recognized a free speech component to campaign contributions and spending, the only question has been what limits, if any, exist to that freedom.
11:58 a.m.
May 14, '10
So you take the position that bribery is protected speech?
1:26 p.m.
May 15, '10
Uh Mitch, the Schrader amendment reads as follows... "[Congress shall have power to] otherwise regulate the expenditure of funds or donation of in-kind equivalents used to support or purchase media advertisements intended to influence the outcome of an election for federal office in the United States."
It would seem to me that that's the provision aimed squarely at Citizens United - and the ruling that allows independent expenditures as free speech.
5:40 p.m.
May 15, '10
Well aware what the amendment reads as. I am arguing that the amendment doesn't really get at the core premise which I, and others, posit is flawed. That money = speech. I reject that premise, though several rulings, Citizens United being but one, claim otherwise.
10:19 p.m.
May 15, '10
So, how would you write a constitutional amendment that gets at that core money=speech premise?
5:37 p.m.
May 13, '10
One thing to keep in mind in terms of this allowing states to set contribution limits is that Oregon is atypical in terms of having no limits on size or source of contributions to state candidates.
States vary in the completeness of their contribution limit regimes, but I think Oregon is now one of only two or three states with absolutely no limits on direct contributions to candidates.
8:33 p.m.
May 13, '10
Oh, darn it, Kurt. Just when I resolved myself to vote against you in your next primary, you go and do something as awesome as this. I had decided you were wandering that line right towards Blue Dog and you weren't looking back, then you go and attempt to solve the matter I consider the biggest hurdle we have to clear to finally fix this broken system we've got.
8:37 p.m.
May 13, '10
Oh, then after I post I notice it's an amendment. Probably not going to happen, not in this political climate. But you never know. There might be 15-20 Republicans in the Senate who suddenly realize that their future Democratic opponents are getting more big business support. Well, maybe not.
6:49 p.m.
May 16, '10
Almost nothing, however, is worth having Bruun elected to anything. Republicant talking-point scum of the worst kind. In this case, I'll fight like hell for Kurt. Any motion he makes away from apparent Blue Dog territory will just make me fight even harder!
9:39 p.m.
May 13, '10
Thanks, Kurt!
11:04 p.m.
May 13, '10
Excellent move, and clear in principle by my Congressional Rep. I congratulate Kurt Schrader. Politically it makes clear the difference between Republican and Democratic Party principles. Republicans favor property over persons every time. And it's time we spelled out in the Constitution that persons have rights, not property, not corporations.
8:31 a.m.
May 14, '10
Bill, you just made an excellent point. corporations are something that is OWNED by people. I have heard many say "aren't corporations just collections of people?" to make the argument that they should be able to be involved in campaign spending.
But my car can't spend money in a campaign. My computer can't spend money in a campaign. It doesn't make sense for corporations to do so. Now, I do agree that people should be able to come together to have a say in campaigns, but do so under the old rules with PACs. Have the money come in limited amounts from individual people. That is truly PEOPLE coming together.
8:53 a.m.
May 14, '10
Great discussion that illustrates the need for multiple reform steps, beginning with disclosure improvements but not ending there.
Rep. Schrader's constitutional amendment approach is one next step, but is still emphasizes a regulatory approach focusing on limits.
I'm intrigued to see if the Citizens United decision is a tipping point that moves forward the long time work of anti-corporate personhood advocates and a constitutional amendment on that topic.
Finally, even if the contribution limits approach taken in Rep. Schrader's proposal is adopted, public financing reform needs to be part of the reform puzzle.
At the federal level, thanks to Rep. Blumenauer, DeFazio, and Wu for co-sponsoring the Fair Elections Now Act. This approach shifts the debate from being just about how much money to thinking about the source of money and empowering small donors by matching their contributions with public funds. Last I checked Fair Elections Now Act had 145 co-sponsors in the House, so momentum is building there too.
9:02 a.m.
May 14, '10
This is a provision intending to control exactly what the first amendment was quite clear the government could not restrict, absolute free expression in the public square. And the people who get to make the rules limiting free expression under Schrader's proposal are the ones already in power. It took the framers just 45 words to write the first amendment (including not just free speech but freedom of religion and the right to assemble and petition). It took Schrader almost 400 words to write this governmental power grab, and if this thing should pass, it won't end here. This is another stumble down a very slippery slope, and a very good reason not to vote for Schrader, or anyone else who would support this restriction of political speech, in November.
10:37 a.m.
May 14, '10
How is the Saudi royal family giving a politician $40 million dollars to induce him to vote a particular way "free expression" instead of bribery?
1:28 p.m.
May 15, '10
Uh... who? when?
5:37 p.m.
May 15, '10
It is a hypothetical.
7:32 a.m.
May 15, '10
Bob - The Federal Government has permitted restrictions on campaign spending for most of the nation's history and for as long as we have had electioneering in political campaigns. The test that the court weighs is the potential for corruption or the appearance of corruption of our political process against the free speech rights of individuals and entities.
When you talk about "slippery slopes" just remember that for most of Oregon's history, the state has operated under strict contribution limits and it is a relatively recent invention at both the state and federal level that unlimited political spending == "free" speech.
I applaud Congressman Schrader for intrducing this legislation as a nice starting point. I hope that Scott Bruun, who has supported contribution limits in Oregon, finds common ground with congressman Schrader on this important issue.
2:19 p.m.
May 15, '10
Sal, I'm not sure where you get the idea that the idea that political contributions are free speech is a relatively recent idea in Oregon. The Oregon Supreme Court struck down campaign contribution limits in Deras v. Meyers in 1975 and Vannata v. Kiesling in 1997, both times citing Oregon's constitutional protection of free speech.
8:12 a.m.
May 16, '10
Yes Jack, and for most of the 100+ previous years, Oregon had among the most restrictive limits on campaign contributions in the United States.
The Oregon Supreme Court has changed significantly since Vannatta. I believe that people who support contribution limits mow constitute a majority on the Court.
After reading the briefs in the Hazell case, I am persuaded that if the Oregon Supreme Court has the same liberal view of Stare Decesis that the Roberts court has, a majority will rule that Vannatta was decided on an incomplete and inaccurate reading of Article II, Section 8.
Frankly, I don't know why Republicans like yourself are not more supportive of contribution limits.
Most of the Republicans I know have come to realize that they cannot compete financially with the public sector unions, and every Republican legislator I've met believes that those unions exert undue influence on the political process here in Oregon.
Now that Sizemore is not running ballot measures designed to soak up union money, where do you think that money is going to go if not candidate races?
12:28 p.m.
May 16, '10
I'm not necessarily opposed to contribution and expenditure limits, although I think they often create unintended consequences. But I am adamently opposed to a constitutional amendment that gives Congress or the state legislature carte blanche to limit or regulate contributions and expenditures with no constitutional limitations whatsoever, which is what Schrader's amendment would do.
And frankly, you might be surprised to learn that not all of us view every issue through a Republican or Democratic prism and think that whether something hurts or helps our own party is not the only consideration in deciding whether something is good or bad.
9:43 a.m.
May 17, '10
Jack - I don't believe that you view all things, or even most things, through a partisan prism. But one need not be a partisan to have concerns about undue influence.
There will always be money in politics, but I am not so naive as to believe that the rules don't matter, nor that Oregon would benefit from reasonable but effective regulation of political contributions.