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Posts Tagged ‘citizens united’

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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Occupy the Constitution

Posted by Peter M. Shane on October 13, 2011

The Occupy Wall Street movement has brought a level of energy and inspiration to participatory Left politics unseen since the 2008 Obama campaign and with, perhaps, yet more enduring potential.

Among admirers who are unfazed by the pathetic attempts at trivialization voiced by Republican politicians and their media propagandists, the chief anxiety seems to be the absence of a specific policy agenda around which to rally the citizenry.

If OWS is to become a lasting force, however, in American policy, its objectives have to go beyond policy proposals that aim at ameliorating our short-term economic distress. The movement has to try to reshape the institutions through which we conduct our politics. Government “of the people, by the people, and for the people” will remain an unlikely prospect as our political institutions are now rigged.

And there is simply no hope of doing the work that needs doing unless significant changes are made to the Constitution of the United States.

Larry Lessig has made an overwhelming case that money is corrupting our democracy. Money has that power, in part because the Supreme Court has interpreted the Constitution to protect plutocracy. But our Constitution, as interpreted by the Court, also lets transient majorities in state legislatures so finagle our legislative elections as to undermine genuine electoral competition. If our “representatives” don’t have to compete for our votes, their positions are quite unlikely to mirror our preferences.

Consider that, in the convulsive 2010 congressional mid-term elections, 87 percent of the incumbents who stood for election were re-elected — this, at a time when public approval of Congress was in the low 20s. If nearly nine out of ten incumbents get to keep their jobs even when the public hates their handiwork, what kind of democratic accountability do our elections actually provide?

It is commonly said that high rates of incumbent retention reflect a world in which voters despise Congress, but love their local representatives. There is, of course, another explanation: legislatures have stacked the deck in favor of protecting incumbents.

There are many ways in which our Constitution undermines democracy. The legislative disenfranchisement of the District of Columbia, the setup of presidential elections and the malapportionment of the Senate are all conspicuous examples. Yet, if recent history is a guide, changing any of these provisions — the makeup of the Senate could not be undone without a new constitutional convention — would be extremely difficult.

It should be less contentious, however, to rally around three ideas that ought to elicit widespread public support across a considerable political spectrum — undoing the constitutional protection for corporate spending, expanding the adult franchise so that all Americans can vote and authorizing the public funding of elections. Toward that end, I have appended below yet another draft of what a pro-democracy constitutional amendment could look like.

Rep. Jesse Jackson, Jr. wrote some years ago of his puzzlement that the American Right seemed always ready, willing and able to rally around proposed constitutional amendments, no matter how improbable — whether it’s a “Human Life” amendment, or a pro-school prayer amendment, or now an anti-gay-marriage amendment. Would it not seem more promising to organize the American people around a constitutional ideal in which people actually believe, namely, democracy?

To cement its role as a new anchor for the Left in American politics, OWS participants should endorse both policy proposals to increase economic fairness and prosperity in the short-term and constitutional changes that will restore government accountability as a meaningful aspiration in America.

DRAFT PRO-DEMOCRACY CONSTITUTIONAL AMENDMENT
Sec. 1. The freedom of speech shall not be construed to deny Congress authority to prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any federal office.

Sec. 2. The freedom of speech shall not be construed to deny authority to the States to prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any state or local office, or for any state or local referendum or initiative, within their jurisdiction, and or to delegate such regulatory authority for local offices, referenda and initiatives to the relevant local governments.

Sec. 3. 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. 4. 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. 5. 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. 6. States 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. 7. Congress may enforce the rights protected by this Amendment through appropriate legislation.

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First Draft of a Constitutional Amendment to Authorize the Regulation of Corporate Involvement in Politics

Posted by Peter M. Shane on January 23, 2010

It is time for the American people to push back against a radical Supreme Court indifferent to both democracy and constitutional values. My contribution is a first draft of a constitutional amendment to overrule Citizens United v. Federal Election Commission — and, while we’re reclaiming American democracy, First National Bank of Boston v. Bellotti, as well.

Sec. 1. Notwithstanding any other provision of this Constitution, Congress may prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any federal office.

Sec. 2. Notwithstanding any other provision of this Constitution, States may prohibit or otherwise regulate political contributions and expenditures by commercial, for-profit corporations for any state or local office, or for any state or local referendum or initiative, within their jurisdiction, and may delegate such regulatory authority for local offices, referenda and initiatives to the relevant local governments.

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