Reps. Donna Edwards and John Conyers have proposed a new amendment to the United States Constitution in the wake of the Citizens United decision, which they're calling The Free Speech for People Amendment:
Amendment XXVIII
Section 1. The sovereign right of the people to govern being essential to a free democracy, the First Amendment shall not be construed to limit the authority of Congress and the States to define, regulate, and restrict the spending and other activity of any corporation, limited liability entity, or other corporate entity created by state or federal law or the law of another nation.
Section 2. Nothing contained in this Article shall be construed to abridge the freedom of the press.
I've made fairly clear my belief that Citizens United was correctly decided and that its potential impact has been exaggerated. Still, that doesn't mean that our democracy does not have a serious problem with the influence of amassed wealth on electoral and legislative outcomes, or as Change Congress co-founder Lawrence Lessig writes,
We need to trust our democracy. We need to believe that its representatives are guided if not by truth, then at least by what their constituents want. Our Framers gave us a Republic in which the government was to be “dependent,” as the Federalist Papers put it, “upon the People.” They were obsessed with assuring that the government be independent of anything else.
But the vast majority of Americans do not believe that their government is “dependent upon the People.” The vast majority believes the government is dependent upon money. Most believe “money buys results in Congress.” Most therefore doubt the integrity of this the most important democratic institution established by our Framers.
This is a corruption — a corruption of the very institution of our democracy.
So then my question is this: if it is necessary to amend the Constitution, why stop with the corporate issues? Why not go all the way back and seriously revisit the legal framework established by the Buckley v. Valeo (1976) decision in order to assert Congress' power to regulate distorting sources of wealth beyond corporations -- self-financing millionaire candidates, 527s and other outside entities and the like.
Now, I'm not saying I would support such an amendment (depending on its contours), but I think this conversation is a necessary and important one to have, and one which perhaps can only be provoked by a real movement towards a constitutional amendment. And in part, what such a conversation might lead us towards is something which Fordham law professor Zephyr Teachout has written brilliantly about -- that a fundamental and intentional part of the Constitutional design was to thwart and deter corruption in government:
Corruption was discussed more often in the Constitutional Convention than factions, violence, or instability. It was a topic of concern on almost a quarter of the days that the members convened. Madison recorded the specific term corruption fifty-four times, and the vast majority of the corruption discussions were spearheaded by the influential delegates Madison, Morris, Mason, and Wilson. The attendees were concerned about the corrupting influence of wealth, greed, and ambition. They were concerned that the small size of the young country (compared to the great European powers) would open it up to foreign corruption, that the proposed Senate would be easily corrupted because of its small size, and that the proposed populist House of Representatives would be easily corrupted because of the weak virtue of the men who would stand for it. The delegates' discussion of these issues was far more oriented toward thwarting corruption than of promoting virtue. Corruption was a “crucial term” for the American Framers.
In the writing of the Constitution, “[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.” Some of the most extensive debates in the Convention-- those about emoluments and perquisites for civil office, who should have the power of appointment, and the size of the relative bodies--were debates about the relative strength of different constitutional designs to withstand corruption. The “unique and universal crisis” of corruption as perceived by the Framers led to frantic, near-apocalyptic language and a search for tools to ward off its threats.
The Framers worked hard to create such a tool through a document that would protect new citizens of the Confederation from each others' most mercenary and covetous tendencies, and delay--if not forestall--the corruption that they believed would eventually founder America. Against these fears, the delegates attempted to build a bulwark against corruption in the clauses and structure of the Constitution.
Among those anti-corruption clauses are the Emoluments Clause, which you might recall from our discussion of Hillary Clinton's ability to serve as Secretary of State; the Constitution's placing the power to initiate spending bills in the larger chamber of Congress; the prohibition upon receipt of foreign titles of nobility or "any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state"; and the Article I, Section 9 requirement that "No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time." And there are many more.
So this is a conversation we should have -- about how to restore this anti-corruption principle to our constitutional understanding and to our politics, and any efforts to encourage the public to consider these issues are welcome. As Teachout concludes:
A worthwhile democracy cannot be sustained under the active efforts of lobbyists and campaign donors to force policy, pressures that are only increasing--these are exactly the kind of corrupting powers that the Framers imagined, even if they imagined them in slightly different shape (wealthy foreigners instead of wealthy corporations, criminal bribes instead of campaign contributions). In other words, the Framers' views should be given weight because structural originalism requires it, but also because the Framers were politically wise in the ways of corruption, and we would do well to learn more from them. It is naïve to think--as some Justices appear to do--that the democratic experiment can work with only self-serving public servants.