Which of the 13 Amendment Bills in Play in the 112th Congress We Support, and Why

We recently did a close analysis of the 13 amendment bills currently in play in Congress.  Here it is:

 

The Bills We Support

Of the 13 bills currently in play in Congress, Free Speech For People endorses these ones:

  • H. J. Res. 88, introduced in the House by Rep. Jim McGovern (D-MA), and:
  • A pair of identical bills, S.J. Res. 29, introduced in the Senate by Sen. Tom Udall (D-NM), and H.J. Res. 86, introduced in the House by Rep. Betty Sutton (D-OH).
Background and Context

The Citizens United ruling presents two serious threats to our democracy: (1) the claim that corporations have constitutional rights, as if they were people, including First-Amendment “free speech” rights; and (2) the assertion that corporations may not be barred from spending money to influence the outcomes of our elections.

Here’s a very brief refresher on how these two problems arose, and why it’s vital that we correct them both, through one or more constitutional amendments.

The central problem in Citizens United is the claim that corporations have constitutional rights, as if they were people, which is fundamentally absurd.  A corporation is an artificial entity, created and allowed to exist by a state government acting on behalf of real people.  Our laws assign certain legal rights and responsibilities to corporations, such as the right to enter into contracts and the potential for corporations to be sued.  Our laws also grant corporations great privileges, such as limited liability, perpetual life, and the ability to aggregate wealth.  But that’s all based on simple laws, subject to change and limitation as we the people, represented by Congress and our state governments, see fit.  In contrast, our constitutional rights are of a higher order.  These rights, such as our rights to free speech, freedom of religion, freedom of the press, and freedom of assembly, safeguard the values that define America.  They’re uniquely powerful, because if a state or federal law conflicts with a constitutional right, the constitutional right prevails, and the law gets tossed out by the courts.  Corporations are now claiming the extraordinary power of constitutional rights, and abusing it, persuading courts to strike down not only our campaign finance laws, but also other democratically enacted laws in the fields of health care, consumer rights, civil rights, and environmental protection. So, it’s incredibly important that we pass a constitutional amendment to make it clear that constitutional rights are only for actual people, and not for corporations.

Citizens United is best known for striking down our laws banning corporations from spending money to influence our elections.  The result has been an opening of the floodgates to billions of dollars that are now expected to be spent on both sides of the 2012 elections.  Although Citizens United related mainly to corporate spending, its practical effect has also included unleashing hundreds of millions of dollars in campaign spending by individuals, leading to the recent proliferation of SuperPACs.  These results are partly due to Citizens United, and also partly due to an earlier Supreme Court case, Buckley v. Valeo, from 1976.  Buckley said that money spent on political campaigns is a form of “free speech” and that there can be no limits on spending by candidates’ campaigns or by individuals acting independently to support a candidate.  (Buckley let stand limits on contributions directly to campaigns.)  Together, Buckley and Citizens United have led to today’s situation: big money drowning out the voices of regular people.

To solve the first problem, we need a constitutional amendment to make it clear that corporations do not have constitutional rights (overruling Citizens United).  This is the crux of the popular slogan, “corporations are not people”.  

To solve the second one, we need an amendment to restore Congress’ and the states’ authority to limit campaign spending (overruling Buckley on spending limits).  This is the essential meaning of the slogan, “money is not speech”.

America urgently needs one or more constitutional amendments to resolve both of these issues.  

Analysis of the 13 Bills

Of the 13 amendment bills related to these issues currently in play in Congress, only three, H.J. Res. 88 (McGovern) and the bicameral companion pair S.J. Res. 33 (Sanders) / H.J. Res. 90 (Deutch) address the claim of corporate constitutional rights.

H.J. Res. 88 (McGovern) is the best of these, in our view, for three reasons.  First, it states clearly that corporations do not have constitutional rights as if they were people, fully refuting the claim to the contrary at the core of Citizens United. Second -- and this is a critical point -- it does so even-handedly, applying equally to all corporations, be they for-profit, non-profit, or incorporated labor unions.  We believe this even-handed approach is essential for an amendment bill to have a real shot at passage and ratification.  Article V of the Constitution sets these bars appropriately high, at ⅔ of Congress plus ¾ of the states.  It’s virtually impossible to envision reaching these thresholds without bipartisan support, and equally difficult to imagine that Republicans will support a bill that applies only to for-profit corporations, while exempting non-profits and incorporated unions. Third, reinforcing the second point, is the fact that H.J. Res. 88 already enjoys bipartisan support, with the co-sponsorship of Rep. Walter Jones (R-NC), along with dozens of Democratic co-sponsors.  It is one of only two amendments among the 13 that have bipartisan support today.  Full disclosure: we at Free Speech For People helped write this bill, and in a survey about a year ago, more than 90% of the Free Speech For People members who responded endorsed it.

S. J. Res. 33 (Sanders) /H.J. Res. 90 (Deutch), a companion pair, also states that corporations do not have constitutional rights, getting to the heart of Citizens United.  However, it applies only to for-profit corporations, leaving incorporated non-profits and labor unions exempt.  We think this is problematic for optical, strategic, and practical reasons.  From the optical standpoint, it’s obviously one-sided, limiting the extent of its potential appeal.  At a strategic level, this makes it very unlikely that Republicans, or perhaps even moderate Democrats, will support it, leaving its chances of passage slim to negligible.  And practically speaking, one need look no farther than Citizens United itself -- the nonprofit corporation that brought the Supreme Court case -- for an example of how corporate money will flow through a nonprofit structure to influence our elections if permitted to do so, rendering the whole amendment exercise moot.  While it is true that the Deutch and Sanders bills also address the second area of concern above, overturning entirely Buckley’s limits on campaign spending, the problems of the carve-out for incorporated non-profits and labor unions remain, and, in our view, disqualify these bills from the kind of serious support that will be required to pass and ratify an amendment to the Constitution.

We believe the choice between H.J. Res. 88 (McGovern) and H.J. Res. 90 (Deutch) / S.J. Res. 33 (Sanders) is clear based on this analysis, and we support H.J. Res 88 (McGovern).

The remaining ten amendments do not address the claim of corporate constitutional rights, but relate instead to the regulation of campaign spending and other election administration matters.

S.J. Res. 29 (Udall) /H.J. Res. 86 (Sutton), a companion pair, does a thorough job of restoring Congress’ and states’ authority to limit campaign spending in all categories, entirely overturning Buckley with respect to spending limits.  It does this one thing and does it well, rather than encumbering this central purpose with additional objectives.  Also, it has considerable momentum in the Senate, with 25 Senate co-sponsors as of this writing.  Free Speech For People endorses this amendment alongside H.J. Res. 88 (McGovern).

S.J. Res. 35 (Baucus) restores Congress’ and states’ authority to regulate campaign spending by corporations specifically, but does not address the claim of corporate constitutional rights, nor does it address campaign spending by individuals or by candidate campaigns.  Although it is even-handed in its treatment of corporations, applying equally to incorporated non-profits, labor unions, and for-profit corporations, in our view it does not cover enough of the necessary ground, either in terms of corporate constitutional rights or in terms of campaign spending.

H.J. Res. 78 (Edwards).  We have great respect for Congresswoman Edwards and worked with her office to help draft this amendment.  Nonetheless, our analysis is that, much like S.J. Res. 35 (Baucus), it only restores Congress’ and states’ authority to regulate campaign spending by corporations, and is regrettably silent both on the claim of corporate constitutional rights and on campaign spending by individuals and by candidate campaigns.  Thus, like S.J. Res. 35 (Baucus), it, unfortunately, does not cover sufficient ground in either area.

H.J. Res. 92 (Ellison) is similar to both S.J. Res. 35 (Baucus) and H.J. Res. 78 (Edwards) in that its effect is only to restore Congress’ and states’ authority to regulate campaign spending by corporations.  Although it has an added, attractive rhetorical flourish of asserting that corporations are not people, it stops short of stating that they lack constitutional rights, as we believe an amendment must state.  In addition, it, unfortunately, like H.J. Res. 90 (Deutch) / S.J. Res. 33 (Sanders), applies only to for-profit corporations, so it has all the same optical, strategic, and practical shortcomings as those bills, although its scope is more limited.  It also does not address campaign spending by individuals or by candidate campaigns.  

H.J. Res. 97 (Yarmuth) has important virtues.  Like S.J. Res 29 (Udall) / H.J. Res. 86 (Sutton), it fully restores Congress’ and states’ authority to regulate campaign spending in all categories.  It does this appealingly by directly stating that such spending “shall not constitute protected speech;” aside from this rhetorical distinction, the effect of this bill’s first section is practically identical to that of the Udall / Sutton bills.  It also has the benefit of bipartisan co-sponsorship, from Rep. Walter Jones (R-NC), making it the only other amendment bill aside from H.J. Res. 88 (McGovern) with such support.  We like this bill for all these reasons.  Yet it also goes further, with additional sections that (1) clarify congressional authority to enact mandatory public funding of elections, and (2) establish a national holiday for the purpose of voting.  While we think these latter two elements would be fine reforms for the benefit of our democracy, we see a strategic concern that bringing these additional concepts into the picture may add significantly to the lift required to pass and ratify an amendment.  We do not view them as essential to reversing the effects of Citizens United and Buckley.  Further, it’s worth noting that, if Congress’ authority to enact mandatory campaign spending limits were restored, a voluntary public funding system (as envisioned under a separate legislative bill now under consideration, the Fair Elections Now Act) would be protected, since Congress could guarantee that publicly-financed candidates would not be outspent by opponents refusing to participate in such a system.  A voluntary public funding system coupled with mandatory campaign spending limits would, therefore, have the equivalent value of a mandatory public financing system.  As a result, we prefer S.J. Res. 29 (Udall) / H.J. Res. 86 (Sutton), which accomplishes the core result with respect to spending limits without requiring this additional lift.

H.J. Res. 8 (Kaptur) is a solid bill relating to campaign finance.  Our analysis is that it restores Congress’ and states’ authority to limit campaign spending in all categories, overturning entirely Buckley with respect to spending limits, just as S.J. Res. 29 (Udall) / H.J. Res. 86 (Sutton) do.  It is substantively difficult to distinguish from those latter bills.  However, the reality is that the Udall bill has vastly more momentum in the Senate, and for that reason we pragmatically endorse the Sutton/Udall language rather than Representative Kaptur’s bill.

H.J. Res. 72 (Schrader) is simply weaker than other bills in this category.  It restores Congress’ and states’ authority to limit campaign spending only on media advertisements, leaving spending on any other item unaffected.  It addresses neither campaign spending by corporations, nor the claim of corporate constitutional rights.  

H.J. Res. 100 (Kucinch) takes the very ambitious approach of establishing mandatory full public funding of federal elections.  As noted in our discussion of Representative Yarmuth’s bill, we think a voluntary public funding system matched with mandatory campaign spending limits will be equivalent in value to a mandatory public funding system.  Further, as written, Representative Kucinich’s bill would apply only to federal elections; it is silent on states’ authority to limit spending on state elections.  

H.J. Res. 111 (Schiff) would accomplish some worthy goals, in particular restoring Congress’ and states’ authority to limit independent expenditures, but it is silent on direct spending by candidate campaigns, and thus falls short of fully reversing Buckley with respect to spending limits.  It also clarifies Congressional authority to enact full or partial public funding of elections; while this is helpful language, it is unnecessary, in our view, if the authority is restored to Congress to enact mandatory campaign spending limits, enabling a voluntary public funding system to be effective.  

Graphic Key to the Accompanying Table

The table above reflects this analysis by:

  • Indicating with bold boxes Free Speech For People’s endorsement of the McGovern and Udall / Sutton bills.
  • Indicating with green shading where bills have elements we think are necessary, including any or all of the following:
    • Stating that corporations do not have constitutional rights (overturning Citizens United entirely);
    • Treating incorporated labor unions, nonprofits, and for-profit corporations equally;
    • Restoring Congress’ and states’ authority to limit campaign spending in all categories (overturning Buckley on spending limits entirely); and/or:
    • Bipartisan co-sponsorship.
  • Withholding green shading on bills that accomplish only part, but not all, of either major objective: stating that corporations do not have constitutional rights, or restoring Congress’ and states’ authority to limit campaign spending.
  • Indicating with red shading where we see a major strategic problem: the one-sided applicability of some amendment bills only to for-profit corporations, with a carve-out for nonprofits and incorporated labor unions, which we view as optically, strategically, and practically unworkable.
Summary of Our Analysis

Only H.J. Res 88 (McGovern) fully overturns Citizens United and does so in an even-handed way.  
An amendment to overturn Buckley on spending limits is also needed.  S.J. Res. 29 (Udall) / H.J. Res. 86 (Sutton), H.J. Res. 97 (Yarmuth), and H.J. Res. 8 (Kaptur) fully do this.  Of these, we think the S.J. Res. 29 (Udall) / H.J. Res. 86 (Sutton) pair is the most promising, both because it covers this base fully yet without extra provisions, and because the Udall bill has so much traction in the Senate.  

Accordingly, Free Speech For People endorses both H.J. Res. 88 (McGovern) and S.J. Res. 29 (Udall) / H.J. Res. 86 (Sutton).  

One Bill or Two?

These bills currently exist side by side, and we support them in that configuration.  There have been previous instances in American history, notably in the Progressive era, when multiple amendments have passed in clusters, close together in time.  With this in mind, we see the passage of both a 28th and a 29th amendment, one related to the claim of corporate constitutional rights, the other related to campaign spending, as a realistic possibility and a scenario worthy of support.

We also would support an alternative scenario, wherein these two bills -- H.J. Res. 88 (McGovern) and S.J. Res. 29 (Udall) / H.J. Res. 86 (Sutton) -- might be combined into one, covering both bases.  This would offer the advantage of a single point of focus for the amendment movement.  

Conclusion

Free Speech For People strongly urges Congress to pass H.J. Res. 88 (McGovern) to overrule Citizens United and make it clear that corporations don’t have constitutional rights, and also to pass S.J. Res. 29 (Udall) / H.J. Res. 86 (Sutton), to overrule Buckley and restore Congress’ and the states’ authority to limit campaign spending.

To access this analysis, including the table, as a PDF, click here.