The Constitution must be amended to assure political equality
Clements is president of American Promise, which seeks to limit the power of corporate, union, political party and super PAC money in politics.
Faith in our political system is at an all-time low. In a recent poll, a record 89 percent of respondents said they view the government as being run by a few big interests looking out for themselves instead of "for the benefit of all the people." (The figure was at 64 percent a decade ago.) By a nearly 2-to-1 margin, Americans believe their "vote does not matter because of the influence that wealthy individuals and big corporations have on the electoral process." And 90 percent agree that elected officials are more interested in appealing to campaign donors than addressing the common good.
Americans are right to believe their interests aren't represented in political outcomes. Research shows economic elites and corporations have a dominant impact on policy, but most citizens have virtually no impact. As money from concentrated factions pours into elections in record amounts, voter turnout remains low, as does satisfaction with candidates, elected officials and the direction of the country generally.
While these issues are critical to our nation, options for legislative solutions are limited in light of Supreme Court decisions that have construed the First Amendment's freedom of speech clause as allowing unlimited spending by corporations, unions and individuals with the financial means to influence elections. Today, whether the spender is Apple (estimated 2018 revenue, $273 billion), its CEO (2018 pay, $120 million), or Jane Smith (annual pay before taxes, $45,000), each "voice" is free to "speak" to voters and candidates by spending money.
Amid mounting concerns about systemic corruption, unequal representation, and undue control of elections and policymaking by powerful wealthy interests, Americans of every political persuasion seek a solution to help ensure political equality for all citizens. Polls and ballot initiatives consistently show extraordinary support among Americans – exceeding 75 percent of Democrats, Republicans and independents — for a 28th Amendment to the Constitution to empower Congress and the states to regulate money in elections, combat corruption, revise how constitutional rights apply to corporations and secure equal representation.
Millions of Americans have petitioned states and Congress on this issue, and 19 states and more than 800 cities, counties and towns have formally enacted resolutions in support. In Congress, 43 senators and 151 House members are co-sponsors of amendment proposals. The 28th Amendment would significantly improve the effectiveness and fairness of participation and representation for Americans in political campaigns and elections, combat systemic corruption, and increase the responsiveness and resiliency of self-government.
History of Amendments and Campaign Finance Regulation
American democracy is a story of constitutional amendments. Due to generations of Americans exercising the Constitution's amendment power, the foundation of our republic rests on:
- the Bill of Rights;
- a ban on slavery;
- expanded voting rights, regardless of race, gender or age over 18;
- due process and equal protection of the laws;
- election of senators by the people;
- a two-term limit for presidents, and a process for removing an incapacitated president;
- elimination of poll taxes as an economic barrier to voting.
In the wake of the Watergate scandal in 1974, amendments to the Federal Election Campaign Act were passed into law. They required disclosure of campaign contributions; imposed expenditure limits for individuals and groups; set spending limits for campaigns, candidates and groups; implemented a public funding system for presidential campaigns; and created the Federal Election Commission to oversee and enforce the new rules.
Soon after FECA became law, a number of candidates, organizations and individuals challenged its constitutionality, arguing that limits on contributions violated freedom of speech under the First Amendment. Ruling on FECA, in 1976 the Supreme Court first applied the First Amendment to any election spending limit, launching a judicial battle that spanned the next 30-plus years (Buckley v. Valeo in 1975, Belotti in 1978, Austin in 1990 and McConnell v. FEC in 2002) and culminated in the 2010 Citizens United v. FEC Supreme Court decision.
That case centered on "Hillary: The Movie," an infomercial that portrayed Hillary Clinton as corrupt and unfit for office, produced in anticipation of the 2008 presidential race by the nonprofit corporation Citizens United. It triggered the Bipartisan Campaign Reform Act by seeking contributions from for-profit corporations to advocate voting against her within 30 days of the primary elections.
Citizens United filed a lawsuit against the FEC, arguing that compliance with BCRA violated its First Amendment rights, and the case reached the Supreme Court. In a 5-4 decision written by Justice Anthony Kennedy, the Supreme Court "rejected the premise that the Government has an interest 'in equalizing the relative ability of individuals and groups to influence the outcome of elections.'"
Two aspects of the Citizens United decision are particularly controversial.
- Corporations are "speakers": Limited liability, perpetual life and concentration of capital give corporations significant economic power that could be leveraged into political power. Corporations also have large economic stakes in politics as decisions can have multibillion-dollar impacts. This combination of economic power and high political stakes makes it important to consider how corporations may influence the outcome of elections and the political process. In Citizens United, the Court glossed over the reality of the corporate structure, abandoning common-sense distinctions between corporations and people.
- Quid pro quo is the only corruption of concern: Previous court rulings maintained that the anti-corruption interest that warranted election spending rules did not merely apply to quid pro quo (bribery) corruption, but also systemic corruption, where major donors obtain substantial influence over political decision-making. Citizens United ended this. The court asserted (with no factual basis) that "[t]he appearance of influence or access ... will not cause the electorate to lose faith in our democracy." Today studies prove this assertion false.
An Amendment to Correct Course
The premise of American political theory is that government is a creation of people who are free and equal to each other. Holding equality as a self-evident truth does not make it so – then or now – but the promise of equality has always been the central feature of American political and constitutional theory.
If Americans are equal citizens with equal rights and responsibilities, our political system would have certain features: Each vote would be equal – one person, one vote – regardless of wealth; elected officials would be more responsive to voters than to donors; and the marketplace of ideas would be open to all citizens and their views, without requiring acceptance by a concentrated wealthy class.
After 40 years of Supreme Court hostility to political equality, our political system instead has the characteristics of an oligarchy. The 2018 midterm election cost more than $5 billion, the most expensive in history. Most of this money comes from less than half of 1 percent of Americans. And between 2010 and 2016, three groups – the Republican Governors Association, the Democratic Governors Association and the U.S. Chamber of Commerce – spent well over $2 billion to influence elections; these groups' largest donors are global corporations.
Contributions to state campaigns have increased from $1.37 billion in 2000 to over $3.2 billion in 2012. As with federal spending, most of the money comes from few donors – and often donors from outside the state, including corporations with business interests in the state. In California in 2016, pharmaceutical corporations spent $86 million – 90 percent of the total money in the campaign – to defeat a drug-price initiative. The next year, pharmaceutical corporations spent $59 million to defeat a nearly identical initiative in Ohio.
In our dysfunctional system, money is not just speech – it is representation. Data shows that because money reigns, most Americans cannot participate meaningfully in determining candidates and election results. Wealthy Americans and corporate interests hold wildly disproportionate influence, and they typically have different policy preferences than most Americans. With political decisions (or indecision) about energy and the global climate crisis, public health, food and water systems, war and peace, and more, this can literally be a matter of life or death for Americans who lack the power of wealth and influence.
It does not have to be this way. The 28th Amendment advanced by American Promise works against creation of election systems that significantly favor those with great wealth – it asserts that the First Amendment protects the rights of all Americans, not just the wealthy few. With the 28th Amendment, we will have more views and more speech from more Americans; more effective, responsive and truly representative government; more empowerment of more voters; more responsible, equal citizenship; and more hope and faith in democracy as an effective form of government.
The paper trail has become the industry standard for giving voters and elections officials confidence that ballots haven't been hacked. Now comes another back-to-the-future move for boosting security and bolstering public confidence in elections: the return of the 10-sided dice.
The quirky toys found in many high school classrooms and role-playing games are part of a pilot program announced this week in Pennsylvania, which is joining a handful of other states in trying out a math-based system for checking the accuracy of election returns.
The "risk-limiting audit" searches for irregularities in vote tallies and relies on some seriously advanced statistical analysis combined with a bit of analog randomness, which is where auditors using those pentagonal trapezohedrons (the dice) at public audit hearings will get involved.
Indiana is not moving nearly assertively enough to upgrade its voting machines so they're less vulnerable to hackers, a nonprofit alleges in a federal lawsuit pressing the state to spend millions more before the presidential election.
At issue is the timetable for eliminating the direct recording electronic, or DRE, voting machines that are in use in 58 of the state's 92 counties. The complaint filed Thursday by Indiana Vote by Mail, which advocates for any array of proposals to give Hoosiers easier access to the ballot box, wants to force the state to replace the paperless devices in the next year with machines that produce a voter-verified paper audit trail.
Indiana for now looks to be among just eight states using paperless balloting in 2020, when President Trump will be counting on its 11 electoral votes. The state last went for the Democratic candidate for president in 2008.