H.J. Res 29 (113th Congress)
Introduced by Rep. R. Nolan (D-MN)
(Drafted by the Move To Amend Executive Committee)
Legal Personhood: A
Money as Speech: A-
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.
Clause one is good inductive language for the definition of persons in the constitution, but “natural persons” might be defined by future generations so narrowly as to preclude the personhood of human beings conceived through artificial means, like IVF. “Living human beings” cannot be so narrowly defined and is a better protection against expanding the definition of “natural persons” to include legal fictions. That may be a remote possibility but ideologically motivated activist courts have already done worse. Clauses two and three essentially give more teeth to the commerce clause and the Tenth Amendment, which is good. [Update: Clause two has been edited to more clearly define all artificial entities as belonging to the same class. This is an excellent improvement that has a positive impact on both the legal personhood and the marketability grades.]
Some critics suggest that the use of language that strips all rights from legal fictions may undermine existing property and contract law but the ability of legal fictions to enter into contracts or own property is a privilege, not a right, which is clarified here. The basic functions of the corporate form do not require access to constitutional rights to be operable. That was true long before the Supreme Court started granting constitutional rights to corporations.
[Update: This section has been edited to account for the comments made by Move To Amend’s David Cobb, which you can see below. While he is, of course, 100% correct about the recognized historical distinction between “natural” and “artificial” persons in the law, the concern is related to interpretation by future generations. 200 years from now, a similarly ideological Court could deliberately misconstrue this distinction in the same way that the Court deliberately misconstrued the meaning of “speech” in the First Amendment, roughly 200 years after its adopting, in the Buckley v. Valeo ruling. That may be a remote and long-term concern that doesn’t really impact the proposal’s effectiveness in the here and now, but it is still a real concern, nonetheless.]
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.
[Update: Clause one has been extended and is now a bit too unwieldy. It’s not wrong, it just might be too wordy.]
Clauses one and three could create an ambiguity by virtue of allowing for the regulation of the flow of money in some, but not all, circumstances. Without fully overturning the Supreme Court’s definition of the use of money as an expression of speech (Buckley v. Valeo), indirect advocacy communications could be seen as exempt, allowing various entities to continue to spend unlimited amounts on persuasive advertising that could easily sway an election or a legislative agenda.
Clause two could be problematic with use of the word “shall” to describe state and local duties. “Shall” is fine for the federal government but some would view a phrase like, “the state and local governments shall,” to be an encroachment on states rights. This hurts the marketability to the right-of-center crowd.
[Update: David Cobb, in his comments below, understandably takes exception to the idea of including advocacy communication. This should have been made more clear in this analysis. The phrase, “to influence elections,” is the relevant portion to this argument and would be better left out entirely than to add advocacy communications to the mix. In that case it would read, “The judiciary shall not construe the spending of money to be speech under the First Amendment.” This would cover all forms of communication that is dependent on money expenditure and reinforce the commerce clause, empowering Congress to enforce factual communications by legal entities in all scenarios effecting both politics and policy, while having zero impact on individual speech rights. However, with that said, it’s also true that this would effectively shut down the specific arguments made by Justice Kennedy in the Citizens United decision and the effectiveness grade has been updated accordingly.]
Although clause two can be achieved via legislation, including it probably doesn’t harm this amendment’s marketability as disclosure rules are generally popular with voters.
The Nolan-Pocan-MTA proposal is the best language with any legs, even with its minor flaws. This version is a net positive that would make tangible progress on reigning in special interests.
The marketability grade is owed partly to the campaign finance language, the slight wordiness and an injudicious use of the word “shall” in Section 2 (“Federal, State, and local government shall regulate…”) which can touch off Tenth Amendment purists and hurt the overall marketability.
This proposal is endorsed by The Amendment Gazette, and the author of this analysis is a member of the MTA Law & Research Committee.