A friend came up with the idea of amending the constitution to limit political campaign contributions to voters eligible to participate in the election for which the candidate is campaigning. We are now trying to find constitutional scholars who can draft a viable text for the amendment.
Amend the Constitution to Limit Campaign Financing to Registered Voters
This note is about the urgent need to align campaign financing with eligible voters and to exclude donations from the range of organizations permitted under the Supreme Court’s Citizens United v. Federal Election Commission decision in 2010.
The best way to accomplish could be through a Constitutional Amendment that permits campaign contributions only from registered voters in national, state, and local elections in which they are eligible to participate. Such an amendment would preclude campaign contributions not only from individuals who are not constituents of a candidate, but also from corporations, but also profit-making and nonprofit corporations, companies, political action committees, anonymous donors, and foreigners.
It should be unnecessary that such an amendment specify a dollar limit for contributions by registered voters. However, clear, publicly available and timely reporting of all contributions should be required.
People who reached voting age before 1990 will remember a time when campaign financing had not reached the absurd levels recorded in recent elections.
In the first eleven months of 2021, an off-election year, roughly $3.5 billion was raised to finance political campaigns. Of this amount, $1.8 billion was raised by Political Action Committees (PACs), $824 million by political parties, and only $871 million (25 percent of the total) by candidates directly.
In the case of Senator Timothy Scott of South Carolina, not quite 10 percent ($1.9 million) of the total individual contributions he received in the first eleven months of 2021 ($20.2 million) came from individuals residing in South Carolina. (Roughly $1 million each from individuals residing in California, Florida, and Texas.)
In the Citizens United case, the Supreme Court held—by a 5-4 vote—that the free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations, including nonprofit corporations, labor unions, and other associations.
This decision overruled a provision in the Bipartisan Campaign Reform Act of 2002 that prohibited corporations, non-profit organizations and labor unions from making “electioneering communications” in advance of elections. (And certain related expenditures.) This Supreme Court ruling also overturned rulings by lower courts in two similar cases. Subsequent Supreme Court rulings removed other campaign finance restrictions.
In the main dissenting opinion, Justice Stevens argued that the court’s ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” And: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold”.
Among many possible objections to the proposed amendment, here are two that must be considered in deciding on the precise text of the amendment:
It is well established that the states have great authority in regulating elections. Can or should the proposed amendment extend beyond Federal elections to limit campaign contributions in state and local elections? Amendment XXIV of the Constitution on poll taxes only applies to Federal elections. However, Amendment XV makes voting restrictions in all elections on the basis of race, color, or servitude unconstitutional, and Amendment XIX on voting by women applies to state and local as well as Federal elections.
If the amendment restricts campaign contributions to registered voters, will it prevent unregistered voters from making campaign contributions to a candidate they are eligible to vote for? On the one hand, this could be unduly discriminatory. On the other hand, it could be a strong incentive for citizens to register to vote. One possible solution could be to limit campaign contributions to “eligible voters”.
The Constitution contains only a few provisions related to “people” and voting. These are cited in the attachment.
Lex Rieffel
Washington, DC
6 January 2022
Attachment
Relevant Provisions in the Constitution
Preamble: We the people . . .
Article I, Section 2: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . .
Article I, Section 4: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . .
Amendment I (1791): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment XV (1870): The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude
Amendment XIX (1920): The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Amendment XXIV (1964): The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. [This begs the question of why the amendment did not prohibit poll taxes in all elections. Perhaps it’s because the courts would regard that as an undue restriction on states’ rights.]
Note: My underlining. To my knowledge, the Supreme Court has not ruled that corporations, etc. are “citizens” of the United States.
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