In an article on the Campaign for America’s Future website last December, Greg Colvin issued a challenge to every person who has drafted a Constitutional amendment to overturn Citizens United v. FEC. In his quest to discover the best approach, the best language to insert into the founding document of our form of government, he suggests that anyone proposing an amendment should be able to answer a series of questions.
Greg Colvin writes, “here are twelve questions to put the choice of language in an analytical framework. Every drafter should be able to answer them.” [emphasis added]
I agree. And I accept this challenge as the drafter of the Human Rights Amendment, which has gotten as far as circulating among legislative staffers in the New York State Senate and Assembly. So first a look at the language of the HRA and then we’ll get straight to the questions.
Human Rights Amendment
Section one: In all instances wherein the words “person,” persons,” and “people” appear in this constitution, such words shall be construed to define living human beings only.
Section two: “Money” is defined only as legal tender for the purpose of settling all debts, public and private. Congress shall make no law recognizing the free flow of money as an expression of speech of any kind, or as an expression of any of the rights enumerated in this constitution.
Section three: Congress shall have power to enforce this article and to regulate federal elections by appropriate legislation.
And now the questions:
1. What is the main purpose? Is it to drive the big money, from all sources, out of elections? Or is it to abolish corporate personhood?
The purpose is to use a one-two punch to undermine the foundation upon which the Supreme Court has based its decisions in both personhood for legal fictions and the spending of money as an expression of speech. The first section would remove the protection of the 14th Amendment, the foundation of modern personhood for all legal fictions. Only those “rights” deriving from case law based on the 14th Amendment, or statute specifically using the terms “person,” “persons,” or “people,” would be abolished. Contract and property law for legal fictions, mostly established long before ratification of the 14th Amendment, would be largely unchanged.
If the first section is the left hook, the second section, preventing the Supreme Court from recognizing the spending of money as an expression of speech, is the haymaker. This is the provision that puts a fork in Buckley v. Valeo and feeds it to Uncle Sam’s dog. It’s clean and simple. And, just like the first section, it uses inductive language to define what things are instead of what they aren’t – a problem that dominates most amendment versions introduced in Congress and elsewhere.
The last section is a slight enhancement on a tradition final provision in most latter amendments. Adding Congress’ power to regulate Federal elections reaffirms Article I, section 4 and specifically tells the Supreme Court to butt-out. Together, all three sections combine into a devastatingly effective tool for reasserting the people’s right to self-determination over the extremes of the activist Supreme Court.
2. If none of the rights extended to corporations are still protected by the Constitution, what would the consequences be — outside of the realm of elections?
Some effects would be immediate. Some Federal regulations that remain in fact or in spirit but cannot now be enforced by court order would spring back to life – OSHA would be allowed to institute surprise inspections again, the EPA would have more leverage over polluters again, and so on. Any invoking of constitutional protections for corporate “rights” being heard in the courts would have to be interpreted in light of the new restriction on access to the 14th Amendment for all legal fictions. And in the long term, the State and Federal legislatures would be newly empowered to pass campaign finance reform legislation that treats legal fictions any way they see fit while still being forced to preserve Constitutional protections for individual citizens.
3. What would happen the day after the amendment was adopted? Would corporate and business spending in elections stop immediately or would legislation and litigation be required?
Legislation would be required. Litigation is a never-ending process but legal fictions would start losing more than they win for a change.
4. What kinds of legal entities does the amendment apply to?a. business corporationsb. nonprofit corporationsc. labor unionsd. other forms of organization (associations, trusts, LLCs, partnerships)e. all of the above
It applies to all legal fictions. Defining what things are automatically excludes everything not defined. Defining what things aren’t only includes what’s on the list, running the risk of leaving something out or failing to predict what may be invented in the future. This language doesn’t strip specific rights or privileges. It sets the parameters for interpreting the Constitution in such a way that all legal fictions are excluded from the definition of “personhood” and spending money is excluded from the definition of “speech.”
5. How should the campaign spending of individuals (including candidates) be regulated?a. no limits on personal spendingb. authorize Congress and the states to set limitsc. set dollar limits in the Constitutiond. prohibit completely
Campaign Finance Reform is a legislative issue. This amendment is designed to clear the Supreme Court off the field of battle and nothing more. There is nothing for advocates of campaign finance reform as a Constitutional amendment in this version.
6. Should all campaign contributions and expenditures be publicly disclosed? Or should Congress and the states allow small donations to be anonymous? In view of all that secret money that flows through nonprofit groups for political “issue ads,” how do we force them to disclose their sources?
See answer to question 5.
7. Should public financing of campaigns be required, permitted, or prohibited?
See answer to question 5.
8. Does the amendment cover both candidate elections and public votes on ballot measures?
To the extent that legislation could be designed to impact both, yes. Otherwise, see answer to question 5.
9. Are all levels of government covered: federal, state, city, town, and county?
Yes. The third section reaffirms the U.S. Congress’ power to regulate Federal elections. Omitting any mention of other jurisdictions means all other jurisdictions are left to regulate their own processes under the rights protected by the 10th Amendment.
10. Is any special wording needed to protect freedom of the press?
Oh sweet heavens, thank you for asking this question! And I can proudly and confidently answer that question with a resounding no! This version doesn’t need to carve out any exceptions for the press. [Note: The Move To Amend version doesn’t need to either but it’s in there, probably, to assuage any fears owed to its reductive language. However, it accomplishes the same goals as the HRA and the exception probably isn’t needed.]
11. Should other subjects be covered in the amendment, such as making election day a holiday, shortening the campaign season, simplifying voter registration, requiring paper ballots, addressing voter disenfranchisement?
No amendment should incorporate more than is structurally necessary to empower Congress to do the work the American people want them to do. The Constitution is not for the kind of things that can be accomplished via legislation.
12. Should there be two or more amendments to carry different aspects of these issues, or one unified proposal?
One unified proposal.
13. …and of course, is the language as brief and clear as it can be?
OK, so he tacked that last one on without giving it its own number but I felt it was important to answer. I believe this is the briefest, clearest, most effective and least partisan language out there. If anyone can find briefer, clearer and better language, please post it here and send a copy to firstname.lastname@example.org. If not, please take a few seconds to sign the Human Rights Amendment petition here. You can read individual critiques of many other versions here.