[Note: Lawrence Lessig is an experienced and thoughtful theorist, one of the most intelligent observers of American jurisprudence in the land and a critically important ally to this movement. Mr. Lessig has been instrumental in bringing this issue to the forefront of American politics and this critique should in no way be interpreted as a dismissal of his important and valuable contributions. This proposal is still on Lawrence Lessig’s blog but he long ago abandoned advocacy for this specific language.]
For the purpose of securing the independence of the legislative and executive branches, Congress shall:
(1) fund federal elections publicly, at no less than the equivalent of the total amount spent in the election cycle when this article is ratified;
(2) limit any non-anonymized contributions to candidates for federal office to the equivalent of $100;
(3) have the power to limit, but not to ban, independent political expenditures within 90 days of an election, including, but not limited to, expenditures in support of, or in opposition to, a candidate for federal office.
The First Amendment shall not be construed to limit legislation enacted pursuant to this article, save to assure content and viewpoint neutrality. Neither shall the First Amendment be construed to limit the equivalent power of state or local legislation enacted to regulate elections of state or local officers. Nor shall the First Amendment be construed to vest in any non-natural person any unalienable constitutional rights.
Congress shall by law establish an agency for federal elections which shall enforce the provisions of this article, and whose principal officers shall be non-partisan commissioners who have served at least 10 years as a federal judge. The agency shall have standing to enforce the provisions of this article judicially in the federal courts, and the judicial power shall be construed to extend to actions by the agency against Congress.
Clause 1: Public financing doesn’t garner the same level of support as overturning Citizens United does, making it a partisan issue that can be accomplished in legislation. It also doesn’t go far enough in overturning the Supreme Court’s definition of the use of money as an expression of speech.
Clause 2: Fixed dollar amounts would have to be amended in the future and must never be used. A better way is to tie contribution limits to a benchmark, like a percentage of median income, for instance.
Clause 3: Do “independent political expenditures” include issue advocacy? Could the “clean coal” commercials be categorized as commerce, not politics? The problem with using terse amendment language for what should be enacted as legislation becomes apparent when one starts drilling down into the details. Campaign finance reform is a partisan battle better left to the legislature. Failing to fully overturn Buckley v. Valeo creates a conflict with the First Amendment that could be exploited to bypass this amendment.
The “content and viewpoint neutrality” clause is clumsily rendered. Codifying a list of how the First Amendment “shall not be construed” is a long way of arriving at the simpler point of defining people as living human beings in the constitution. And “non-natural person” is deductive language that could be construed to preclude living human beings conceived through artificial means, such as IVF, by future generations. It may seem outlandish to us now but so did the idea of corporate constitutional rights two hundred years ago.
It’s hard to see how the response to judicial activism should be to empower career jurists to control the process. The agency is a fine idea but restricting the leadership to the legal profession is a big mistake both structurally and politically. Not only is this the kind of agency or department that can be created in legislation, per Article I, Section 4, it creates a new layer of bureaucracy that overlaps with an existing agency and that conflict would have to be fixed with legislation anyway. Also, the notion of finding ten “non-partisan commissioners” by Congressional appointment in any era seems to be wishful thinking. Ultimately, whether or not people think this is a good idea, it certainly doesn’t need to be debated in the context of a constitutional amendment.
Lawrence Lessig’s amendment proposal is very dense but doesn’t fully overturn Buckley. Any conflict between this language and the First Amendment could be decided in favor of the First by a Court that bends over backwards to find a reason to expand corporate “rights.” An amendment with so many parts, especially the addition of a whole new federal agency, doesn’t have to be partisan to be picked to pieces by detractors.