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Occupy the Constitution 2.0

Posted by Peter M. Shane on December 16, 2011

I cannot say that my earlier suggestions for a pro-democracy constitutional amendment have ignited a firestorm of grassroots activity. They have, however, elicited enough email responses to prompt my attempt at a yet better-drafter version.

Members of Congress have already proposed a constitutional amendment to deal, in particular, with the Citizens United problem, and the Supreme Court’s general hostility towards campaign finance regulation. As critical as these moves are — I wholeheartedly recommend Larry Lessig‘s Republic, Lost for a compelling analysis of how money has corrupted our political system — I do not believe they are sufficient to generate the kind of revitalization our political system needs if we are ever to replace our entrenched plutocracy with more genuinely democratic government.

Revamping our political landscape in the name of democracy requires, I believe, four critical changes: the legitimation of campaign finance regulation, authority for public financing to reduce the impact of disparate fund-raising among candidates, the constitutionalization of federal voting rights, and legal protection against gross gerrymandering. The following draft amendment embodies this four-part strategy — with thanks to readers who have offered friendly amendments to the amendment.

Draft Pro-Democracy Constitutional Amendment

Sec. 1. Congress may regulate political contributions and independent expenditures regarding elections for any federal office as may be reasonable to protect the fairness and integrity of such elections. Such regulations may include the prohibition of political contributions and expenditures by commercial, for-profit corporations for any federal office.

Sec. 2. States and the District of Columbia may regulate political contributions and independent expenditures regarding elections for any state or local office, or on behalf of any state or local referendum, within their jurisdiction, as may be reasonable to protect the fairness and integrity of such elections. States may delegate such regulatory authority for local offices, referenda and initiatives to the relevant local governments. District of Columbia, state and local regulations may include the prohibition of political contributions and expenditures by commercial, for-profit corporations for any office, or on behalf of any initiative or referendum, within the relevant jurisdiction.

Sec. 3. Regulations adopted pursuant to this Amendment may not have as their purpose the suppression of, or discrimination against, any particular political viewpoint.

Sec. 4. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for state or federal office or any referendum, initiative or similar ballot contest conducted in the state of which he or she is a duly registered domiciliary. No citizen of the United States who has reached the age of 18 may be denied the right to vote in any election for local office or any referendum, initiative or similar ballot contest conducted in a local jurisdiction of which he or she is a duly registered domiciliary. Any election regulation that has the purpose or effect of denying the right to vote that is not narrowly tailored to serve a compelling and legitimate government interest shall be unconstitutional. States shall adopt affirmative measures to ensure that citizens may conveniently exercise the rights guaranteed by this section.

Sec. 5. In districted elections for federal, state or local office, every citizen of the United States who has reached the age of 18 shall have the right to vote in a fairly apportioned district that implements the principle of one person, one vote and that has not been drawn substantially for the purpose of defeating political competition and preserving the majority status within that district of any political party.

Sec. 6. Congress may provide for the funding of elections in connection with any federal office. Should any candidate in a publicly funded federal election choose to decline public funding, Congress may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 7. States and the District of Columbia may provide for the funding of elections in connection with any state or local office. Should any candidate in a publicly funded state or local election choose to decline public funding, the state or relevant local jurisdiction may permit adjustments to the subsidies provided other candidates according to the fundraising and spending of their privately financed opponents.

Sec. 8. Congress may enforce the rights protected by this Amendment through appropriate legislation.

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