H.J. Res. 48 (114th)
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, such as corporations, limited liability companies, and other 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 the lack of a definition for “natural persons” could pose problems for future generations dealing with an explosion in medical tech and biotechnology. It could also be expanded to include artificial entities by a majority pro-corporate Court that sees an easy way to manipulate an undefined word. While there is a distinction between “natural” and “artificial” personhood in established law, the concern is related to interpretation by future generations that may not have the same respect for precedent.
“Living human beings” is a better term because it prevents broadening the definition to include legal fictions or narrowing the definition to exclude living human beings from an unpopular subgroup or who may have come into the world through significantly artificial means. 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.
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.
Clauses one and three work well to overturn most of Buckley v. Valeo, but indirect advocacy communications could be seen as exempt, allowing big money entities to continue to spend unlimited amounts on persuasive advertising that could sway public opinion on pending legislation and general policy, possibly indirectly influencing the outcome of elections and/or ballot measures. It would be better to completely omit the phrase, “…to influence elections…” in clause three, which narrows the restriction and leaves open to interpretation what types of advocacy communications constitute protected speech.
The use of the word “shall” in clause two is fine for the federal government but some would view a phrase like, “The state and local governments shall…” to be an encroachment on the Tenth Amendment. This hurts the marketability to the right-of-center crowd. 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-Move to Amend 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.
This proposal is endorsed by The Amendment Gazette, and the author of this analysis is a member of the MTA Law & Research Committee.