MCC April 7, 2020

My name is Greg Blonder. I live in Brookline, MA,  teach at Boston University and serve as the Executive Director of WeAmend.us, which is crowd-sourcing a new Bill of Rights.

Crafting an amendment to address campaign finance reform is a balancing act. It must be specific enough to avoid misinterpretation, general enough to serve future generations, democratic enough to allow free speech and expression, and restrictive enough to prevent corrupt influence and the domination of a few voices over the many.

To date, the amendments introduced in Congress are in the form of notional enabling guidelines based on unraveling SCOTUS precedent. Unfortunately, these same generalities expose vast opportunities for mischief or inaction or protracted legal battles. Moreover, some proposed formulations indirectly threaten free speech. And, even if the amendment demands protections through “will vs shall”, there is no guarantee enabling legislation, by a reluctant Congress, will be strong or timely.

Current approaches will not get the job done. More importantly, they will not be ratified.
 
The best way to game out a practical and effective amendment is via a National Citizen’s Congress, where a multitude of voices can be heard, and potential sand traps avoided. As part of that or any other effort, including todays, it is CRITICAL to consider novel ways to solve the campaign finance reform challenge. Even if this novel language is not fully adopted, my experience helping individuals and corporations become more creative confirms that non-traditional thinking leads to the most robust outcomes.

So what I am proposing? Instead of indirect means, go to the heart of the matter. Money. Limit the money, and the rest will follow.

The Constitution already contains hard limits. For example, the 14th amendment did not venture into florid detail over-turning Dread Scott by disassembling the ruling’s logic on what it means to qualify as a citizen. Instead, it simply proposed “natural born” as the sole criteria for citizenship. Making it much harder to ever again employ this ruse to discriminate against former slaves.

The presidential age qualification of “35 years” is another simple surrogate, offering voters sufficient time to judge candidates on their record. This hard limit is a much more workable solution than a series of means-tests, religious qualifications or vetting by wise men.

Similarly, we all know trickle down economics does not precipitate equality. It’s just a pretext for the rich to get richer.  If you want to create jobs, legislate job programs. Period.

In that spirit, and to stimulate a more robust discussion, here is an alternative approach proposing specific rights and limitations on campaign finance:

DRAFT Campaign Finance Reform Amendment- Subject to debate and improvement

Section I. Advocacy for elected representatives, candidates, campaigns, public elections, ballot issues, legislation and other similar political activities, whether by contributing funds or donations of in-kind equivalents, are subject to a yearly aggregate expenditure cap across all such activities.

Section II. The expenditure cap of Section I is set, every five years, at one third of the median US household income.

Section III. Associations of people, including corporations, may collect Section I funds to contribute in unison. No other private funds or donations of in-kind equivalents may be spent  on Section I activities. Only citizens and legal residents may provide Section I support.

Section IV. Congress and the States have the obligation to implement this amendment through appropriate legislation.

Goal:

There isn’t enough time to discuss the rationale for each section, so instead let’s focus on the main motivation.

This amendment suggests, when the average spending on political speech exceeds a third of the median yearly income those funds are probably no longer enabling fair speech. They are simply buying influence.

Which raises the question, just how much political speech is too much? Political debate is an important civic duty, but only one part of life. We also devote our time and money to food, to housing, to participating in our community, and to just having fun. Something is wildly out of balance if election spending becomes the dominate use of our scare resources. For this reason, the amendment sets a hard limit of 1/3rd median income, which is currently ~$20k.

By way of perspective, the median annual political donation is $100, while 80% of all electioneering and lobbying funds are contributed by 0.5% of the population.

This amendment also bypasses the tricky legal issues around corporate personhood, or reliably determining if corporations are controlled by foreign interests. Even if someone is a billionaire, they can only contribute $20k a year. Yet is still allows individuals to join together and speak with one voice. Groups, such as newspapers or the ACLU or the local church, are allowed to bundle individual donations to increase their share of voice. Corporations can spend money on elections, but only if they receive those funds from individuals for that purpose. But they cannot contribute their own corporate operating funds beyond the 1/3rd median limit.

Most importantly, this is a constitutional limit that can be enforced in court even in the absence of detailed statutes.

By avoiding the corporate personhood issue and the controversy over public campaign financing, this amendment reduces the number of opponents, which might ease the ratification battle ahead.

An unusual approach? Most definitely. But sometimes viewing the world from a new perspective opens up a world of possibilities.

Addendum:

This amendment allows both citizens AND legal residents to contribute to campaigns. Legal residents pay taxes, their kids go to public schools, and they are subject to all domestic laws, rules and regulations. Even if they cannot vote, they have a right of free expression, and to indirectly prevent taxation without representation by exercising their free speech rights.

No amendment is perfect. Enabling legislation, regulations and court reviews will shape interpretations of this amendment in response to changing values and external factors.

Possible unintended consequences

• Companies will lean on employees to contribute to a PAC, perhaps give them a raise with the quid pro quo that they contribute.
• Companies, as a more interested party than the general public, have valid reasons to spend large sums to protect their business. Are we damaging this valuable business function?
• This amendment blocks foundations from making large contributions, because the foundation exception is often misused.
• A newspaper supported by subscriptions could dedicate some of those funds to advocacy, if they do not support day-to-day operations.
• False social media campaigns and memes are inexpensive and disproportionately damaging. So the “in-kind” limit may be an insufficient brake.
• Illegal immigrants are banned from contributing to political campaigns. Does this mean they cannot hold street protests over immigration legislation?
• The amendment anticipates “news reporting” on bills is not advocacy, and thus not limited by Section I. But what happens when reporting is highly partisan?
• Additional bureaucratic costs incurred to track spending

 
Factoids

• About 1/3rd of Rep&Dems donate to campaigns. Many fewer independents.
• Median political donation $100
• Only 2.5M donate 200$+ and are in IRS database
• 45,000 give more than $10k a year for a total of $3.5B
• 80%$ of donations from 0.5% population https://www.opensecrets.org/overview/donordemographics.php
• Adelsons, Kochs, Bloomberg etc spend $100m or more a year, and can afford a lobbying and communication army.
• Direct cost of Senate race $10m https://www.opensecrets.org/news/2016/11/the-price-of-winning-just-got-higher-especially-in-the-senate/
• Outside money another $10m
• House $1.5m, little outside money
• >$1B spent on ballot initiatives- averaging $100m for top initiatives, mostly out-of-state money  https://ballotpedia.org/Ballot_measure_campaign_finance,_2018

MCC November 23, 2019

Testimony from Greg Blonder, a resident of Brookline, a Professor at Boston University, and the Executive director of WeAmend.us   WeAmend’s mission is to bring the power of democratic citizens initiatives to Washington, by debating and helping to pass a New Bill of Rights. I note a crowd-sourced Bill of Rights is likely to include some aspect of voting reforms.

Citizen’s Congress

Passing amendments is hard. Over 12,00 have been introduced in Congress, while a mere 33  were advanced to the states, and only 27 ratified.

To last the test of time, Constitutional amendments must be carefully devised and written. Amendments without broad-based support will not be adopted, while those ignoring key, powerful constituencies are doomed to fail. History also demonstrates that very general amendments (notably the ERA) or highly convoluted amendments (like the 2nd) are easily misinterpreted and undermined by the courts and changing political winds.

Navigating these turbulent waters requires guidance from people with varied perspectives and experience. For the MCC’s mission to be effective, diverse voices, including likely adversaries from outside our Blue Bubble, along with potential, yet skeptical allies (such as the ACLU, unions  and the press), must all be consulted. We need to invite testimony, from all sides, in front of the Commission as soon as possible.

There are dozens of Campaign finance reform amendments currently circulating in Congress, each with different approaches and wording. There are also many related amendments regarding term limits, or the narrowing of corporate citizenship. If all this commission produces is yet one more enthusiastic polemic to be introduced by our congressional delegation, we may congratulate ourselves on a job well done, but this entire opportunity will be wasted. For nothing will have changed.

On the other hand, Massachusetts has the opportunity to lead the nation again, as we did when nurturing the “Cradle of Liberty” in the Revolutionary War. We propose that Massachusetts co-sponsors a National Congress of Citizens, to debate and word-smith a single, unified campaign reform amendment. In other words, crowd-source the amendment with a representative assembly of citizens. This Citizen’s Congress will also evolve into the nucleus of a fifty-state, grass-roots lobbying tidal wave, capable of propelling the amendment through at least 38 state legislatures.

How would this Congress work?

We will gather in Philadelphia at Independence Hall for a weekend-long discussion and debate. The theme is campaign reform, balancing and striking compromises between hard limits on contributions, corporate and large money participation, public financing, term limits, etc.

It begins with three delegates from every state. One representing each constituency (Congress to approve the amendment, State Legislatures to ratify and the Public to advocate). We will ask each congressional delegation and each state Speaker to nominate a delegate. And we will select a public representative from citizen’s groups in each state. If neither legislative body cooperates, then citizen’s groups with similar demographics will be chosen as substitutes, but we intend to publicly shame uncooperative politicians. In order to expand the interest base and build public support, some of the delegates may be well-known, popular, iconic individuals. And the selection process itself is an opportunity to raise awareness and create a bit of a competition.

Other invited players would include legal experts and historians to provide facts-on-demand, but not to make policy. These fact-givers will help answer delegate’s questions about the law and the context within which their proposed amendments will be judged. A briefing book, explaining the challenge and offering pre-reading material will be available at least a month before the event. Teams with experience moderating large, diverse group discussions will help facilitate the discussion. A common set of rules of order,  which are mandatory for participation, will prevent small factions from dominating or disrupting the Congress..

(c.f. Center for Deliberative Democracy https://cdd.stanford.edu)

There will also be an online presence to allow public comment (but not direct debate) as the proceedings unfold.  Along with the usual social media feeds.

Aspirationally, we’d like as many congressional delegations and state legislature to agree, IN ADVANCE of the Citizen’s Congress, to introduce the resulting amendment in Washington en bloc.  My experience working with diverse teams strongly indicates that when the stakes are real, they more freely collaborate across ideological lines and the outcome is more robust.

The MCC has an opportunity to take leadership on Campaign reform, and to do so within the spirit and meaning of its charter. I encourage the Committee on Advancing the Amendment to recommend sponsoring a Citizen’s Congress, and for MCC as a whole to invite a broader range of testimony at its meetings.

Thank you.

            Greg Blonder