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A Constitutional amendment to undo Citizens United

I inveighed here against the recent US Supreme Court decision in Citizens United but until now had no proposed remedy that I thought might be effective. Appearing on Bill Moyers' Journal, Larry Lessig helped me along by casting a different light on the majority opinion. Based on that, I have drafted a Constitutional amendment to undo Citizens United and provide a solid foundation for broader campaign finance reform that isn't blocked by the money-equals-speech wall the Court has created in this and earlier decisions such as Buckley vs. Vallejo (1976).

My recollection of Lessig's point is this, perhaps with some of my embellishments: The Supreme Court has always been very careful to protect the public reputation of the judicial branch for impartiality and legitimacy, and properly so.  Due process requires, they say, that a judge must recuse himself if there is even an appearance that he is biased for or against a litigant.  Just last term, they held a West Virginia supreme court judge should have recused himself from a case in which a litigant (Massey Coal Co.) had spent ~$1 million to get him elected.  In its various efforts over a century to regulate campaign finance and lobbying, Congress has had exactly the same purpose—to revive and protect its own reputation for integrity and legitimacy.  In Citizens United the Court has ruled that, although the Judiciary has inherent power to protect its own integrity, Congress does not. Worse, the Court has now held that it's unconstitutional for Congress and the President not to be essentially for sale to the highest bidder. 

My draft amendment is also influenced by Ronald Dworkin who argues here that one of the most basic purposes of the right of free speech is to help "protect democracy," i.e., to protect from corruption and distortion the process by which the People elect their representatives.

Here's my draft:

Section 1: The Congress shall have the power to enact laws protecting the integrity and reputation for legitimacy of the Congress and the Office of President, of every person holding or seeking an elective office of the United States, and of democratic election processes, by providing for the public financing of elections and campaigns and limiting the use of private funds therein to those provided by citizens who are natural persons, by limiting the amounts that each person may contribute or spend for or against candidates, and by requiring public disclosure of such contributions and expenditures.

Section 2: The several States may exercise the same powers to govern elections for offices of the State and its political subdivisions.

Section 3: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

[Please see the revised draft in the March 6, 2010 Update below.]

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