Greg Colvin is a Principal Partner with Adler & Colvin, a California law firm providing legal services and support to the nonprofit and philanthropic sector in the U.S. Mr. Colvin wrote out 12 questions that anyone drafting an amendment to address the post-Citizens United landscape should be able to answer and published them in an article on the Campaign for America’s Future blog. That was where I first encountered his contributions to this effort and took up his challenge. I believe I was the first but I wasn’t the last and we hope more will chime in (click on the site contents tab and scroll down to “Defense of Proposed Amendments.”) But, as you will read below, Mr. Colvin has been much more instrumental than previously understood.
A few notes on the interview itself. This took place back in September during the Occupy Anniversary weekend in New York City. Mr. Colvin happened to be in town for a conference and I seized the opportunity for a chat. However, that was a very busy weekend for both of us — him with meeting family and attending the conference, me with Occupy and Move To Amend activities planned throughout. So we had about a twenty minute window during which I picked Mr. Colvin up on the west side of lower Manhattan and drove him across town to meet his brother and conducted this interview along the way. And to make matters worse, the brand new batteries I put in the recorder died part-way through.
If the sound quality was good enough, I would have published it in that form right away. But due to the conditions, the audio is not good enough for public consumption. So the transcript will have to do. And the reason it took this long to post is nothing more than inundation in my personal life. The Gazette is a volunteer effort and life will intervene for all of us at times. Your patience is appreciated.
To the Interview…
Paul Westlake (TAG): What inspired you to write out your initial article asking the 12 questions that all drafters of amendments should be able to answer?
Greg Colvin: Well, it was a process really, since I started trying to draft a Constitutional amendment myself and comparing to other ones that had been introduced in Congress or thought up by various grass roots groups. I know the process I was using to make sure all the bases were covered, that all the implications that we could imagine were anticipated — maybe it would be good to have a grid or a standard list of ten or twelve questions that everybody seriously interested in amendment language could address. And then we could see, alright, well, exactly what range of issues do we want to cover? Are we leaving anything out? What’s particularly provocative or debatable? You know, it’s a way of focusing the collective process on the best possible result.
PW: And how far did you get in your own drafting process?
GC: Well, actually, the first one that I did was very simple. It just said only people can vote, therefore only people should finance campaigns. It had two parts that basically said only individuals can be the source of money in elections in America. That would then exclude corporations and any other artificial entities. The second part, much like those introduced in Congress, basically said Congress now has the power, and so do the states, to regulate the spending of money in elections, any kind of election, whether it’s a candidate or ballot measure election. And that includes the spending of a candidate’s own money. And there can be a system of public financing. There could also be a system of political committees where contributions are disclosed. All that at the option of the legislatures.
That was the first one I did and then after I published the list of ten questions, I was in conversations with a number of people in this field who thought, you know, leaving it open for individuals to potentially make unlimited contributions is a real opportunity for abuse and we’re seeing it right now with Sheldon Adelson and the Koch brothers and others who just, under the Buckley decision in 1976, are entitled to spend as much as they want of their own money.
Well, that certainly corrodes democracy and makes wealthy people much more “equal” than the rest of us. So, I thought, you know, maybe we shouldn’t just leave it to Congress and the states to set a cap on individual spending. Maybe that should be in the Constitution, too. At least, you know, as a talking point. So I sort of put out an amendment 2.0 this Spring that basically said the limit, per person, ought to be 10% of the annual median household income, which is about $52,000. So we’re really saying, you know, in this country you’ve got one vote. Maybe there should be a limit on how much you can spend. And we’ll just set that at an amount that’s well above what the average person might spend in a year — $5,200 — it’s indexed to inflation if it follows the annual median income, and that would eliminate then the ability of the 1%, the wealthy, to give any more than five thousand dollars per person.
So, again, it’s a basis for considering how much good we’re really doing with the various reforms that people are proposing.
PW: We have the three proposals that I sent to you [Note: Sanders/Deutch proposal, Move To Amend proposal and the Human Rights Amendment proposed by the authors of this website], did you have a chance to look those over?
GC: Yeah, I did.
PW: We can start with Senator Sanders. What do you think of the efficacy of what he’s proposing in his amendment?
GC: Well, I should say I had the opportunity to communicate with Ted Deutch’s office, which originally drafted that amendment, while it was in process, and, you know, there were struggles over how to reconcile a concern about controlling money in elections and addressing corporate personhood, particularly because “corporations” includes all sorts of organizations — for-profit business corporations as well as non-profit public interest organizations and, potentially, labor unions. So, what are we really concerned about when we want to limit the rights of corporations? Are we concerned about Walmart, Exxon, General Motors? Are we concerned about the ACLU, the Sierra Club, Planned Parenthood? Those are all corporations. Even most churches are incorporated.
So, what I came around to in discussing this with Sanders’ and Deutch’s offices and in my own thinking is that, if we’re going to control the legal rights of corporations, that should be the for-profit business corporations, the heart of capitalism. We shouldn’t be giving the government the opportunity to take away the rights of non-profit corporations and labor unions and that’s why you see, in the Sanders/Deutch version, a withdrawal of constitutional rights but only but only from the business, for-profit side, where, of course, wealth can be accumulated in a private equity circumstance and used to get leverage over elections.
PW: What do you say to the argument that groups like Crossroads GPS and ALEC are also non-profits and are merely aggregating corporate wealth under a non-profit banner? Does that concern you with this type of language?
GC: Well, you know, it’s true. Crossroads GPS is a 501(c)4 organization and it can get money from individuals or from corporations. The same is true of ACLU and Planned Parenthood Action and the Sierra Club, the Rotary Club, all sorts of organizations that share that legal status. My background is, I’m a non-profit tax-exempt lawyer so, for the most part, I don’t represent commercial, you know, mega business corporations. My perspective is from the non-profits, so the real question is where could Crossroads GPS or Americans for Prosperity, for that matter — People for the American Way — where can they get their money to spend in elections and if they’re prevented from getting it from corporations, and they can only get it from people, then we’ve created a level playing field that eliminates the corporations as payers, by that I mean business corporations.
PW: One of the things that you confronted initially was the idea that the Sheldon Adelsons and Koch brothers and so forth could contribute in unlimited amounts. Does that also not apply to them contributing to 501(c)’s?
GC: It does. It does. And that’s why I believe we have to consider not only allowing Congress and the states, by overcoming the Buckley case, we need to allow the Congress and the states to limit individual spending but maybe we need to actually limit it in the Constitution itself. I think the one that I drafted — the 2.0 — is the only one that does that. Actually, I should take that back. I think there are some who have eliminated all personal, private contributions from corporations or individuals to finance campaigns, leaving the only outlet to be public financing. I think that goes too far but you can see the logic.
PW: I describe the Sanders and Move To Amend — and I’m a member of Move To Amend and I signed their petition and I agree with what they’re trying to accomplish — however this [Human Rights Amendment] is written completely differently. I consider amendments that are written like Sanders and Move To Amend, and all of the proposals that have been introduced into Congress so far, as “outcome oriented” and I describe what I’ve attempted to do here with The Gazette as “process oriented.” The model I used for my version was the Bill of Rights. My feeling is that the Constitution itself is not the document to make law that is as specific as creating caps or contribution limits. I think it’s more a skeleton that you create the foundation on and then you put the meat on the bone with legislation. What do you think of the difference in those approaches?
GC: Well, let me just take them in order. First of all, Move To Amend is, I think, taking the approach of combining two purposes. One is to abolish corporate personhood in the federal Constitution and the other is to authorize — actually, they use the word shall, “federal, state and local legislatures shall regulate money in elections” — and what those two approaches do is, they both somewhat overlap in the field of elections but to remove federal constitutional rights from all corporations for all purposes — and I know this is in the Gazette version also, the process approach that you’re using — there’d be no guarantee of Constitutional rights in any way for anything but individual persons. You run into questions of what happens with rights that are outside the area of First Amendment speech and include due process, search and seizure.
Eminent domain is kind of an interesting one because — I know in the Gazette version you talk about money should not be involved in any federal Constitutional rights but, in fact, one of the rights in the Constitution is to provide just compensation to those who’s property is taken for public purposes, the eminent domain clause. So, what would mean to say that no one but an individual person can have that right? It means if you take money away from a hospital or a church or a corporation or any kind of non-human entity, you can do that without compensating them if that right is removed from the Constitution. That right is also in various state constitutions and state law, so it wouldn’t disappear entirely but the federal guarantee would.
Back on Move To Amend. You know, I think their version is probably not the final, best version. I can see that they’ve used language I’ve noticed appeared in other, earlier versions. The idea of making sure we include a candidate’s own spending as well as ballot measures — actually, I think that came from the first version that I did in January 2011 — and I’m glad that that kind of breadth is being anticipated.
The batteries died a few seconds later and the rest of the interview is lost to posterity. There can be no doubt that Mr. Colvin has devoted considerable thought and research to this issue. The points he makes are valid in most instances but there are some to disagree with here. I won’t offer my rebuttal until Mr. Colvin has had a chance to respond. I hope to be able to post a follow-up soon.
Bear in mind, Mr. Colvin is on our side. As with all coalitions, there will be disagreements on the scope and best approach but we all want cleaner, fairer elections, less propaganda on the airwaves and a Congress that responds to the majority, not the extremely small minority of wealthy donors they tend to represent most.
But one of the most important takeaways should be the understanding that Mr. Colvin has been on the team of trusted advisers that created the Sanders/Deutch proposal. Engaging with the people working with the legislative teams is critically important and this is an opportunity to get some of our most urgent concerns taken seriously by someone with a bit more access to the Beltway Bubble.
Lastly, I believe there is another important question that all drafters of amendment proposals should be able to answer that Mr. Colvin left off his list: what impact, if any, would this proposal have had on the Citizens United decision itself if it had been adopted in the Constitution prior to 2010? I’ll let Mr. Colvin answer that question for the Sanders/Deutch proposal. What I can say is that the HRA proposed by the authors of this website would have prevented the Roberts 5 from tying “natural” corporate personhood to the Buckley and First Bank of Boston decisions to further expand the reach of the First Amendment, limiting the scope and rendering Citizens United a merely technical, statutory ruling on existing law.
At the end of his article introducing the 12 questions, Mr. Colvin makes this statement:
“But what I really think we need is for all the proponents to get their ideas out on the table, have a big summit conference, test each approach using criteria such as these twelve, and forge a unified amendment.”
I couldn’t agree more. The Gazette is here to serve as a preliminary forum for such discussions.