Benjamin Gerdes, Press Secretary for Congresswoman Donna F. Edwards(MD-04), replied to our request to have the thirteen questions posed by Greg Colvin on the Campaign for America’s Future website answered. Congresswoman Edwards was the first to introduce an amendment to the Constitution to Congress in the aftermath of the Citizens United decision. Colvins questions will be followed by Gerdes’ answers in block quotes. Her testimony before Senate Judiciary Subcommittee on need for constitutional amendment to address Citizens United can be found here, and Colvin’s questions will follow her proposed amendment, House Joint Resolution 78, which contains two sections below.
HJ Res 78 Section 1.
Nothing in this Constitution shall prohibit Congress and the States from imposing content-neutral regulations and restrictions on the expenditure of funds for political activity by any corporation, limited liability company, or other corporate entity, including but not limited to contributions in support of, or in opposition to, a candidate for public office.
Nothing contained in this Article shall be construed to abridge the freedom of the press.
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 of H.J. Res. 78 is to end the unlimited corporate campaign contributions allowed by the Supreme Court in Citizens United v. Federal Election Commission.. The amendment addresses the Supreme Court’s ruling that there is no basis under which the government may limit corporate independent expenditures due to the corporate right to political speech under the 1st amendment. H.J. Res. 78 would amend the Constitution to expressly delegate Congress and the States the authority to impose content-neutral regulations and restrictions on the expenditure of funds for political activity by any corporate entity, excluding the media.
Corporations are legal entities created under the laws of a state. The only consequence of H. J. Res. 78 on the operation of a corporation is that it’s expenditure of funds for political activity would be fully subject to content neutral regulation under the authority of Congress and the States.
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?
Upon adoption of the amendment proposed in H.J. Res. 78, Congress and the States would have the authority to regulate corporate political expenditures. Legislation would be required at the state and federal level to carry out the expressly delegated constitutional powers.
4. What kinds of legal entities does the amendment apply to?
H.J. Res. 78 applies to any corporation, limited liability company, or other corporate entity.
5. How should the campaign spending of individuals (including candidates) be regulated?
The traditional rights of political speech that citizens have enjoyed under the 1st amendment and current law is not disturbed by this amendment.
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?
Though H.J. Res. 78 does not directly address disclosure, all campaign contributions should be disclosed. Congresswoman Edwards is a cosponsor of H.R. 4010, the DISCLOSE Act, which establishes an appropriate framework for establishing transparency in the political process by enhancing public reporting by corporations, unions, and outside groups of campaign-related activity, while also requiring those groups to stand by their political ads and say “I approve this message.”
7. Should public financing of campaigns be required, permitted, or prohibited?
Though H.J. Res. 78 does not directly address the subject, a robust public financing system would contribute to a fairer political process. Congresswoman Edwards is also a cosponsor of H.R. 1404, the Fair Elections Now Act, which is modeled on successful programs in several states to create a voluntary program where congressional candidates would qualify for funding to run a competitive campaign. In exchange, participating candidates would agree to strict campaign spending limits and forgo all private fundraising.
8. Does the amendment cover both candidate elections and public votes on ballot measures?
H.J. Res. 78 would apply to any corporate political activity, including expenditures on ballot measure campaigns.
9. Are all levels of government covered: federal, state, city, town, and county?
H.J. Res. 78 will expressly delegate Congress and the States the authority to regulate corporate political expenditures which will cover federal, state, city, town, and county elections.
10. Is any special wording needed to protect freedom of the press?
Section 2 of the proposed amendment in H.J. Res. 78 expressly states “Nothing contained in this Article shall be construed to abridge the freedom of the press”.
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?
The goal of this amendment is to directly address the Supreme Court’s ruling in Citizen United in clear and direct language. The inclusion of other subjects would dilute the focus from the goal of the amendment.
12. Should there be two or more amendments to carry different aspects of these issues, or one unified proposal?
Citizens United can be effectively and directly addressed by a single, precisely written amendment.
…and of course, is the language as brief and clear as it can be? Is it?
H.J. Res. 78 was drafted with input from Prof. Laurence Tribe, a constitutional scholar and law professor at Harvard Law School, and John Conyers the former Chairman and current Ranking Member of the House Judiciary Committee. Special attention was paid to the precision of language to achieve the stated goal succinctly.
TAG analysis of Edwards’ amendment language can be found here.