Notes on the Proposed 28th Amendment

The Amendment that Publius proposed has some thought behind it, not all of which is apparent on the surface. Here are some notes, tied to each paragraph. 

For the purpose of securing the independence of the legislative and executive branches, Congress shall: 

Preambles haven’t had much success in our constitutional tradition (see, for example, the Court’s complete failure to pay attention to the Progress Clause perambulation), but you can’t fault a guy for trying: This aims at making it perfectly clear that the purpose of this Amendment is to protect or better secure the independence of Congress and the Executive, by which I mean the proper dependence: As Federalist 52 puts it, “upon the People alone.”

(1) fund federal elections publicly, at no less than the equivalent of the total amount spent in the election cycle when this article is ratified; 

This is one of three critical changes: Public elections must be publicly funded. Precisely how is for Congress to determine. I prefer a “small dollar funded elections,” such as the Fair Election Now Act or what I’ve called the Grant & Franklin Project. The “at no less than” clause makes sure Congress doesn’t underfund the system (and thereby entrench the incumbents). “The equivalent of” again is intended to index the amount to inflation. 

(2) limit any non-anonymized contributions to candidates for federal office to the equivalent of $100;

Some good souls want to GetMoneyOut. I want to get corrupting money out. I am with Spencer Overton: Obama taught us the importance of getting small dollars in (even if that lesson seems to have been forgotten). So this part would preserve the participatory money, while keeping out the corrupting money. “The equivalent of $100” is meant to index the $100 to inflation. 

The most puzzling bit of this paragraph is the “non-anonymized” part. This is meant to leave it open to Congress to permit (truly) anonymous contributions. I know the intuition is that’s impossible. But as Ackerman/Ayres show, it’s quite possible. The proposal is complex, but the key is to make contributions revokable — so even if I can show you today I contributed $5,000, tomorrow I can revoke it so you can’t be sure. Read more about it here.

(3) have the power to limit, but not to ban, independent political expenditures within 90 days of an election, including, but not limited to, expenditures in support of, or in opposition to, a candidate for federal office.

This is the bit that responds to Citizens United. As I argue in Republic, Lost, there was a kernel of truth in the Court’s decision: No one or thing — corporations, dolphins, or the Chinese – should be banned (or effectively so by being so burdened) from saying anything. Especially not the non-profit filmmakers, Citizens United, Inc. But that doesn’t mean that there is no legitimate corruption-related interest in limiting “independent” expenditures. Of course there is a fundamental difference between Citizens United spending its money to promote its film about Hilary and a Exxon spending $100 million in an election. This clause recognizes that difference, by giving Congress the power to limit “independent political expenditures” — whether corporate or individual — during the time around an election, whether “issue ads” or promoting/opposing a candidate. 

2. The First Amendment shall not be construed to limit legislation enacted pursuant to this article, save to assure content and viewpoint neutrality. Neither shall the First Amendment be construed to limit the equivalent power of state or local legislation enacted to regulate elections of state or local officers.

So this is a critically important paragraph that reintroduces First Amendment values (the guarantee of government neutrality) into campaign finance regulation. The concern is that ¶1 alone might be read to completely free Congress from the duty to be neutral. So, e.g., a ban on one side vs the other. Also, ¶1 doesn’t do anything to give States and localities the freedom to secure their own independence of elected officials, or judges (as some states (very stupidly) choose to elect judges).

3. Congress shall by law establish an agency for federal elections which shall enforce the provisions of this article, and whose principal officers shall be non-partisan commissioners who have served at least 10 years as a federal judge. The agency shall have standing to enforce the provisions of this article judicially in the federal courts, and the judicial power shall be construed to extend to actions by the agency against Congress.

A big problem is who gets to enforce the rules. Existing Supreme Court doctrine makes it hard to imagine anyone with the power to force Congress to do its work. (“Force” in a weak sense of the term: nothing can really force Congress to do anything). So this first creates a new F.E.C. It fills it with effectively neutral commissioners — I stole this idea from Bruce Ackerman. And it expressly says that Courts have to let that commission sue to enforce the provisions of this Amendment, including the ability to enjoin Congress to act. That is a very dangerous power, I know. Many democracies have tried it and failed. So this might be trouble.

Nonetheless, this is a crucial part of the amendment. The current FEC is hopeless, and hopelessness is in its DNA. There must be a body with constitutional standing to hold Congress to the terms of this Amendment. 

4. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This is the standard clause that gives Congress “Necessary and Proper” power with respect to this Amendment. So Congress gets to pass the implementing legislation, and other “appropriate” legislation. 

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