Amending the Constitution to ensure free and fair elections

supreme-court-campaign-finance-decision

A U.S. Senate vote is scheduled next month on a proposed Constitutional amendment to empower Congress to enact reasonable campaign finance legislation. The movement to amend the Constitution is a response to recent Supreme Court decisions such as Citizens United and McCutcheon, which overturned campaign finance laws on constitutional grounds, and is seen by many as the best chance to promote clean elections that aren’t dominated by a few wealthy oligarchs.

Considering that the highly unregulated campaign finance system of the United States has long been a concern of the international community, the vote could also be seen as a demonstration of the U.S. commitment to meeting its international obligations on holding democratic elections.

Although international election-related commitments are somewhat ambiguous on the topic of campaign finance laws, it is widely understood that unregulated private money has the potential for tilting the playing field in favor of a particular party or candidate, thus potentially violating the requirement in the 1990 Copenhagen Document for OSCE member states (including the U.S.) to “provide political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities.”

Following the 2010 midterms, OSCE election observers noted that “Money played a significant role, creating an uneven playing field between candidates. About three-quarters of the total of upwards four billion dollars was spent on political campaign ads on television and radio. The ads inundated the airwaves, turning many voters off.”

In its statement on the 2012 general elections, the OSCE noted “the unprecedented and often negative role played by private campaign financing [which] has a potential to impact negatively on the fairness of the process.”

The amendment being considered by the Senate in a vote scheduled for Sept. 8 would address some of these concerns by unequivocally empowering Congress to adopt laws geared towards curbing the undue influence of big money in U.S. elections. If the amendment passes by a 2/3 vote of both houses of Congress, it would then have to be ratified either by the legislatures of 3/4 of the states or by conventions in 3/4 of the states, depending on which means of ratification Congress proposes.

The full text of the amendment is as follows:

Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

From the perspective of the U.S.’s international election-related commitments, the amendment would likely be seen as a positive step in redressing some of the problems identified in the U.S. electoral system. As the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) explains in its “Guidelines for Reviewing a Legal Framework for Elections,” countries “may establish reasonable limits on private financing of political parties and candidates in order to preserve fair competition during elections and lessen incentives for corruption and undue influence in politics.”

When it comes to independent expenditures, the question at the heart of the Supreme Court’s 2010 Citizens United decision, ODIHR further explains that outside groups “should have the right to expend funds during a campaign, [but] those expenditures should also be subject to reasonable limitations and disclosure requirements.”

Recognizing that expenditure limits may be problematic in countries such as the U.S. whose constitutional framework considers the right to spend money in a political campaign to be protected as political speech, ODIHR nevertheless explains that “within the context of international good practice, however, a reasonable limitation on expenditures is acceptable because a state has an obligation to ensure that the free choice of voters is not undermined, or the democratic process distorted, by the disproportionate expenditure on behalf of any candidate or party.”

In this regard, a reasonable limitation can help promote the existence of a “level playing field,” says ODIHR, and “ensure that the campaign information received by voters does not disproportionately favor one contestant because that contestant is able to monopolize the flow of information through campaign expenditures.”

Numerous grassroots campaigns are mobilizing to put pressure on the U.S. Senate ahead of the Sept. 8 vote. The group Public Citizen is urging people to contact their senators to help build support for an amendment.

“Now is the moment for your senators to stand up for democracy against the enormous deluge of money in our elections,” says Public Citizen, warning that “a weak vote may make it difficult to bring the issue up again.”

According to an action alert by CREDO Action,

An overwhelming majority of Americans oppose the toxic influence of money in politics. But a conservative majority on the Supreme Court has systematically eroded barriers to the 1% buying elected officials.

Now we have a major opportunity to fight back.

On September 8, the Senate is scheduled to vote on a constitutional amendment to overturn Citizens United and other toxic Supreme Court decisions that have opened the floodgates to unlimited political spending by corporations.

CREDO is urging citizens to sign a petition stating that “Corporations and the ultra-rich shouldn’t be allowed to buy our elected officials by spending unlimited amounts of money influencing elections. Pass Senate Joint Resolution 19, which would amend the Constitution and overturn Citizens United.”

To add your name, click here.

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About The Compliance Campaign

Campaigning for a United States in compliance with its international obligations. Follow on Twitter here: https://twitter.com/compliancecamp Facebook: https://www.facebook.com/compliancecamp Comments, article submissions or news leads are welcome at compliancecampaign [at] gmail.com.

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