Amendment Comparisons

In recent years there have been many different amendment proposals to reform our campaign finance laws. While all are written with the best of intentions, if we are truly going to get big money out of politics we must unite behind an amendment that is powerful, carefully crafted, and able to obtain the bipartisan support necessary to be pass through two thirds of Congress and three fourths of state legislatures. We believe the Restore Democracy Amendment, which was written with input from many leading legal scholars, offers the best combination of power and viability. But we want you to understand why by comparing the Restore Democracy Amendment to some other prominent proposals.

For each proposal below, we provide the full text and ask five critical questions so that you can understand each different proposal’s strengths and weaknesses. We also have a condensed version of the same information in our Amendment Comparisons Chart.

Amendment Comparisons Chart

 

 

 

 

 

Democracy for All Amendment

The Democracy for All Amendment is one of the most prominent amendment proposals in Congress. It has been introduced by Senator Tom Udall in the Senate and Representative Theodore Deutch in the House.

SECTION 1.  To advance democratic self-government and political equality for all, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set limits on the raising and spending of money by candidates and others to influence elections.

SECTION 2.  Congress and the States shall have power to implement this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

SECTION 3.  Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

1) Does it guarantee any specific reforms? No. Rather than enacting any specific reforms such as placing limits on spending by corporations or unions, the Democracy for All Amendment would only make it possible to enact specific reforms at some unspecified date in the future.

The Democracy for All Amendment requires an extra step in order to enact any desired reform such as overturning Citizens United. Not only would we have to pass the Democracy for All Amendment, but Congress and state legislatures would then have to pass additional legislation to place limitations on corporations and unions. As a result, there is no guarantee what impact the Democracy for All Amendment will have because it depends on Congress and legislatures to take additional action.

Though making those reforms possible is a step in the right direction, it may be risky to pass an amendment that does not guarantee any specific reforms for a few reasons. First, Congress would need to pass campaign finance legislation, which may be unlikely in a polarized political climate. Second, a partisan Congress would pass highly partisan campaign finance reform, such as reform that benefits corporations and harms unions or vice versa. Third, even if Congress does enact meaningful campaign finance reforms, there is always the risk that those reforms will be undone by the next Congress if those reforms are not codified in an amendment.

2) Does it overturn Citizens United? No. The Democracy for All Amendment would make it possible to overturn Citizens United, but it does not provide any guarantees.

3) Does it shift power from the Supreme Court back to We The People? Yes. The first two sections of the Democracy for All amendment are designed to allow Congress and the states to enact meaningful campaign finance reforms without the Supreme Court preventing those reforms from being enforced. That is the amendment’s greatest strength.

4) Does it appeal to both Democrats and Republicans? It should. Because the Democracy for Amendment does not single out corporations or unions, or take extreme measures like abolishing all corporate constitutional rights, it has more bipartisan appeal than many other proposals.

5) Does the amendment have a realistic chance of success? Probably. The Democracy for All amendment has already gained some support in Congress and it may be uncontroversial enough to succeed. However, if we are going to make the effort to pass a constitutional amendment to get big money out of politics, it seems awfully timid to choose the Democracy for All Amendment, which provides no assurance that troubling Supreme Court decisions like Citizens United will be effectively overturned. So while the Democracy For All Amendment’s viability is definitely a virture, we believe the Restore Democracy Amendment is an appealing alternative for those who want to support a more powerful proposal without sacrificing too much viability.

Wolf PAC’s Constitutional Convention Call

Wolf PAC is a political action committee that is attempting to pass an amendment by getting states to call for an Article V convention, which is a constitutional convention that would occur if 34 states call for a convention on the same topic. the Amendments can then be proposed at the convention, and if they emerge from the convnention they would go to the States for ratification. The language Wolf PAC has used most recently* calls for…

“A convention to propose amendments in order to address concerns such as those raised by the decision of the United states Supreme Court in Citizens United v. Federal Election Commission and related cases and events, including those occurring long before or afterward, or for a substantially similar purpose, and desires that the convention should be so limited.”

1) Does it guarantee any specific reforms? No. Wolf PAC’s language does not offer a specific amendment proposal. Instead, the language calls for a constitutional convention where amendments to address problems caused by big money in politics can be proposed. Because the language regarding “related cases and events, including those occurring long before or afterward” Citizens United is somewhat vague, there is simply no way to know what proposals would emerge from a convention based on Wolf PAC’s language.

2) Does it overturn Citizens United? No. Because Wolf PAC does not actually have any specific amendment language, there is no way of knowing whether or not a convention called based on that language would successfully overturn Citizens United.

3) Does it shift power from the Supreme Court back to We The People? No. Wolf PAC’s approach of calling for a constitutional convention without proposing any specific amendments creates the potential for anything but promises nothing.

4) Does it appeal to both Democrats and Republicans? Since Wolf PAC does not have specific amendment language we cannot evaluate whether such language would appeal to Democrats and Republicans. However, we can consider whether or not Wolf PAC’s plan of calling for a constitutional convention appeals to Democrats and Republicans, and the evidence thus far indicates that it does not.

In more than six years since it’s founding, five states have passed Wolf PAC’s legislation, which is a point in the plan’s favor. However, no “red states” have supported the plan, raising doubts about how much this approach appeals to Republicans. In addition, many Democrats do not support Wolf PAC’s plan because they fear what is known as a “runaway convention,” which is a constitutional convnention that results in amendments that were not intended when the convention was initially called. For example, imagine calling for a convention to get big money out of politics only to have that convention propose an amendment to prohibit all gun sales or ban gay marriage.

Based on the track record of the past six years, it is fair to say that Wolf PAC’s plan has not yet gained bipartisan support, and that the chances of gaining that support are slim since most of the states that have considered Wolf PAC’s legislation have not supported it.

5) Does the plan have a realistic chance of success? Probably not. In order for an Article V convention to occur, 34 states must make the convention call, which has never happened in American history. If both red and blue states were consistently supporting Wolf PAC’s approach, optimism would be justified. But considering that no red states have passed Wolf PAC’s legislation and most of the blue states that have considered the legislation have not adopted it, there is little reason to believe that we will get close to the 34 states necessary to succeed. At Wolf PAC’s current pace, the convention they are advocating for would not occur until after 2050. That doesn’t mean the states that have called for the convention did not make an impact, but at this point Wolf PAC’s effort should be thought of more as a way to build support for an amendment than as a realistic plan for passing an amendment.

In addition, even Wolf PAC’s successful convention calls are somewhat muddled by another problem…

* Wolf PAC Has Used Different Language in Different States

In its effort to get states to call for a constitutional convention, Wolf PAC has used at least four different proposals in different states. The language above was used in Illinois while entirely different language was used in California, Vermont, and New Jersey. That discrepancy poses a challenge  because in order to call for a constitutional convention limited to a specific purpose, the requisite 34 states must call for the same convention.

For example, if 34 states called for a convention to pass a Balanced Budget Amendment, there would be a convention to pass that amendment. But if 30 states make convention calls for a Balanced Budget Amendment and 5 states call for an Equal Rights Amendment, no convention would occur because disparate calls cannot be counted together. So…even though Wolf PAC has gotten a some states to call for a constitutional convention, because those states have used different language, they are not necessarily united in a call for the same constitutional convention; there is a strong argument that they have called for four entirely separate conventions. That is something Wolf PAC will need to address if they continue to move forward.

Move to Amend’s We The People Amendment

Move to Amend is an organization that is focused on abolishing corporate constitutional rights. They have proposed the amendment below.

Section 1. [Artificial Entities Such as Corporations Do Not Have Constitutional Rights]

The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial 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 Free Speech]

Federal, State, and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, to ensure that all citizens, regardless of their economic status, have access to the political process, and that no person gains, as a result of their money, substantially more access or ability to influence 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.

1) Does it guarantee any specific reforms? That is a difficult question. The We The People Amendment is designed to abolish all the constitutional rights of corporations and unions. That would undoubtedly lead to significant changes, but it is difficult to say exactly what those changes would be.

For example, the We The People Amendment is likely intended to overturn Citizens United, but some legal scholars have argued that corporate constitutional rights were not the cause of Citizens United, and that therefore, abolishing those rights would not overturn the decision.

There are additional questions regarding the consequences of abolishing all the consitutional rights of corporations and unions. For example, if nonprofit corporations or unions no longer have constitutional rights, can they still endorse political candidates, own property, or sign contracts? There are no easy answers. The best way to delve into these issues may be to read Move to Amend’s perspective on their webite as well as the article linked in the preceding paragraph and professor Kent Greenfield’s article on this topic.

The second section of the amendment titled Money is Not Free Speech also raises questions about what specific reforms it would create. “Access” and “influence” come in many forms so what does it mean if “no person gains, as a result of their money, substantially more access or ability to influence in any way the election of any candidate for public office or ballot measure?”

If a wealthy individual is retired and has more free time to volunteer on a political campaign than a single parent who works two jobs, doesn’t the wealthy individual have substantially more influence as a result of their money? If one person can afford to fly to Washington, DC to meet with members of Congress and another cannot, doesn’t the first person have substantially more access as a result of their money? Would the We The People Amendment try to prevent those inequalities somehow?

As you can see, although the text of the We The People Amendment promises significant changes, it also creates a lot of questions. For that reason, the amendment does not necessarily guarantee specific reforms.

2) Does it overturn Citizens United? Maybe. Read the preceding answer for more details.

3) Does it shift power from the Supreme Court back to We The People? Yes, the second section of the amendment is clearly aimed at Buckley and attempts to prevent the Supreme Court from thwarting our campaign finance reform efforts. On the other hand, because the amendment proposes immense changes to the entire body of constitutional law and introduces nebulous new concepts of “access” and “influence” that may ultimately be defined by the Supreme Court, one can argue that the amendment actually gives the Court some additional influence over our campaign finance laws.

4) Does it appeal to both Democrats and Republicans? No. Many Democrats and the vast majority of Republicans do not support abolishing all the constitutional rights of corporations and unions. Though attempting to address problems caused by corporate constitutional rights may be a worthwhile goal, getting big money out of politics and stripping away the constitutional rights of every entity other than natural persons are separate issues. By attempting to tackle both with one amendment, the We The People Amendment drives away potential allies who want big money out of politics, but are not prepared to support the drastic step of abolishing the constitutional rights of all artificial entities.

5) Does the amendment have a realistic chance of success? No. Keep in mind that any amendment must be ratified by three fourths of state legislatures, meaning that it needs to have widespread support among Democrats and Republicans. Because abolishing the corporate constitutional rights of corporations and unions raises concerns on both sides of the aisle, the We The People amendment does not have a realistic chance of obtaining the bipartisan support necessary to succeed.

Restore Democracy Amendment

“No corporation, limited liability company, partnership, other business entity, or labor union, may contribute general treasury funds to a candidate for elected office, use general treasury funds to make expenditures advocating for the election or defeat of such a candidate, or contribute general treasury funds to any entity that engages in such advocacy.

 For the purposes of this Article general treasury funds shall mean all funds other than those funds contributed by natural persons to a corporation, limited liability company, partnership, other business entity, or labor union for the expressed purpose of legislative or political advocacy.

With respect to Federal elections, nothing in this Constitution shall prevent Congress from placing limits on the contributions made to a candidate for elected office, on expenditures advocating for or against any such candidate, and on a candidate’s own expenditures. 

With respect to State elections, nothing in this Constitution shall prevent States from placing limits on the contributions made to a candidate for elected office, on expenditures advocating for or against any such candidate, on a candidate’s own expenditures, and on expenditures advocating for or against any ballot initiative or referendum.

Nothing contained in this article shall be construed to abridge the freedom of the press.”

1) Does it guarantee any specific reforms? Yes. If passed, the Restore Democracy Amendment would ensure that corporations and unions can no longer use their general treasury funds for contributions to candidates or for independent expenditures in support of or in opposition to a candidate for elected office. Unlike other proposals that do not offer a specific amendment or require an extra step after ratification, the Restore Democracy Amendment contains language that guarantees concrete reform immediately. The day it is ratified is the same day we strike a major blow against big money in politics.

2) Does it overturn Citizens United? Yes. By placing the limits on corporate and union general treasury funds as described above, the amendment effectively overturns the Supreme Court’s Citizens United decision. However, the Restore Democracy Amendment is also noteworthy for refraining to go so far that it invites the type of unintended consequences that align opponents against other amendments.

3) Does it shift power from the Supreme Court back to We The People? Yes. Our campaign finance problems are largely the result of the Supreme Court’s poorly reasoned Buckley v. Valeo decision and our government continues to be plagued by an underlying problem: that nine unelected justices on the Supreme Court, rather than We The People, get to decide our campaign finance laws.The Restore Democracy Amendment addresses that problem by empowering Congress and the States to enact meaningful campaign finance reform without the Supreme Court preventing those reforms from being enforced.

4) Does it appeal to both Democrats and Republicans? It should. By recognizing that both corporations and unions pose a threat to the integrity of our democracy and by not seeking to abolish all corporate constitutional rights, the Restore Democracy Amendment is something that members of both major parties can support.

5) Does the amendment have a realistic chance of success? Probably. The Restore Democracy Amendment is comparable to the Democracy For All Amendment in terms of viability, and it is stronger than that proposal in the sense that it would lead to guaranteed reform. It is the only proposal that would overturn Citizens United and shift power from the Supreme Court back to We The People while not being fatally vague or divisive. The amendment is concrete, clear, and has bipartisan appeal. We believe the Restore Democracy Amendment strikes the right balance and therefore, it is the amendment that offers the greatest chance of success.

Conclusion

We hope the information above helps you understand the differences between the major proposals to pass a constitutional amendment because they are not all created equaly. And if we are going to pass an amendment to get big money out of politics, we cannot afford to waste our energy on proposals that don’t have a realistic chance of success.

We are working at the local, state, and federal level, to build support for an amendment generally, and for the Restore Democracy Amendment specifically. But we need your help to continue making progress. If you are ready to join the movement to get big money out of politics, please visit our volunteer page to see how you can take action and make a donation so we can keep moving forward!