5 Comments


  1. Thank you for your analysis and interest in our proposal. There are a few aspects to your pithy critique and subsequent tough grades that I would ask to address. Please let me be the first to point out that an amendment to the Constitution is only necessary if it actually changes or adds something to the Constitution. In other words an amendment would be unnecessary if it didn't "violate" the existing Constitution.
    The current version of the RDA article 1 is as follows:
    "The right of the individual qualified citizen voter to participate in and directly elect all candidates by popular vote in all pertinent local, state, and federal elections shall not be denied or abridged and the right to vote is limited to individuals."

    My recent post


  2. As far as the objection as to vagueness, article 2 of the RDA; "The right to contribute to political campaigns and political parties is held solely by individual citizens. "Is far more powerful, direct, and to the point than any other proposal fielded. And that is an objective reality. The term individual is never used by itself in our proposal, only as a qualifier for citizen or voter. The RDA does not specify the individual limit because that rightly is best done with legislative give-and-take after an amendment is passed and would not require any layer of bureaucracy only pegging a limit set by legislation on average disposable income or other economic index. Interestingly since this assessment was made Dr. Gerkin has published a proposal very similar to our first article, and Dr.Tribe has published his proposal which is quite similar to the article 4 in the RDA. I expect there is a slim chance this comment will ever see the light of day as it is apparent your mind was made up prior to evaluating our proposal.

    My recent post

    • pewestlake pewestlake

      [Part 1]

      Hi Craig and thanks for stopping by. And thank you for clarifying the update to your proposed language. I'll update it here and amend my critique accordingly.

      I'll give you "pithy" without a fight but I have a hard time accepting a phrase like, "…that is an objective reality." I think with nearly two dozen separate proposals floating around and multiple disagreements with smart, experienced legal minds as to whether or not an amendment is even necessary, to say that any position carries the weight of "objective truth" is a bridge too far. I do know how you feel but all of us in this movement have to be open-minded and willing to be proven wrong. And even when we think we're still right, we're all on the same side. And, while my grading regime may seem harsh, if I was convinced by an ally that the HRA, as written, had a gaping loophole in it, I would lower my own grade until I found the right way to revise it.

      The "effectiveness" grade is based entirely on the proposal's impact on the corporate personhood track (starting with Santa Clara) and the money-as-speech track (starting with Buckley). I, and most others in the Move To Amend coalition and Free Speech For People organization, recognize that those two tracks of case law represent the sum total of the underlying legal reasoning behind all of the Supreme Court's rulings on corporate "rights" and campaign finance. We further believe that campaign finance reform is too complicated and partisan to be accomplished via amendment. Therefore, it is considered a negative in the grading system. If you can make a strong enough case that it shouldn't be scored that way, I'm all ears.

    • pewestlake pewestlake

      [Part 2]

      To your other points:

      I believe you're making a major leap in assuming that a constitutional amendment "would be unnecessary if it didn't 'violate' the existing Constitution." For instance, the Bill of Rights is ten amendments that had zero impact on the phrasing and wording of the original articles. It may have guided future interpretation, but there was no "violation" inherent in those amendments. Prohibition simply expanded the scope of the commerce clause to include the power to prohibit consumption for that one particular commodity, but it had no impact on any other provision of the Constitution and didn't constitute a violation as the commerce clause has been used to prohibit consumption of other commodities without resorting to an amendment.

      I do understand your point, though. Certainly we CAN write an amendment that directly impacts and changes the nature, or even outright abolishes, the First Amendment, but any amendment that doesn't complete that job would be seen to be in conflict with the First. Conventional wisdom suggests that the newer amendment would take precedence over the the First but that's hardly a guarantee. And the Court has proven that they will exploit any ambiguity in the Constitution to empower corporations. Leave the door open a crack and they'll pry it off its hinges. I think we can agree on that much.

      What I mean by the layer of bureaucracy is that Congress would likely be seen as too partisan to set such limits via conventional legislative means. It is more likely that an independent committee would be appointed to make the proper recommendations. That committee could easily become an agency in short order. And then we have a whole new set of bureaucrats to deal with. It's not a guarantee but it is a fairly plausible, if not likely, scenario. And I think it's likely. But that's different than "require" and I'll amend my critique accordingly.

    • pewestlake pewestlake

      [Part 3]

      Last couple things. You did overlook one spot in your proposal where the word "individual" is still on its own, but with the qualifiers on the other instances, it's less problematic than before your edits. Also, the proposals by Mr. Tribe and Ms. Gerken are similarly problematic. Mr. Tribe's proposal fails to fully overturn Buckley, leading to that ambiguity I mentioned earlier. And Ms. Gerken's proposal doesn't even touch it. And neither of them tackle legal personhood at all. I don't believe they will achieve the result they desire, and the existence of other proposals similar to the HRA, like the Move To Amend and the Free Speech For People proposals, make it clear that nobody has a monopoly on the best methodology at the moment.

      Of course, I think my language is best, as we all do. But my approach to this debate is to be as open, candid and flexible as possible. That's why I co-founded the NYC affiliate of Move To Amend (because they have a quarter million signatures and I currently have 147 and if my proposal never sees the light of day, I want to be on record with MTA, the most effective of the bunch, imo) and also why I created The Amendment Gazette as a place where people like you and I can hash things out in the open.

      I don't believe I have a monopoly on all the good ideas and my mind is not "made up" as you suggest. And it certainly wasn't made up PRIOR to reading your proposal. If I operated that way, I wouldn't associate with MTA or put links to more than 20 separate movement allies on the reference page. I'm sorry that I obviously offended you but you got your shots in enough at this point and maybe we should try to work together more going forward. The Amendment Gazette is here to help, not harm. I hope you come to appreciate our efforts.

      Thanks again for stopping by and critiquing my analysis. I'll update this page as soon as possible.

      In Solidarity,
      Paul Westlake

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