Sen. Sanders' Constitutional Amendment to Undo Citizens United and Buckley: Three Issues

On December 8, Senator Bernie Sanders (I-Vermont) introduced a constitutional amendment to drive big money out of politics for good. He was not alone. Senator Mark Begich of Alaska joined him. Sanders' amendment is called "Saving American Democracy," but the language is identical to the "OCCUPIED" amendment offered in the House by Representative Ted Deutch (D-Florida), inspired by the Occupy Wall Street movement and beginning to attract co-sponsors.

On November 18, I posted a blog applauding the Deutch amendment as the strongest one introduced so far to redress the imbalance of power between the global corporations and the people in our democracy. See "Finally, a Constitutional Amendment for the 99 Percent" for my analysis of how this amendment compares to others introduced this year. Truly, the Sanders/Deutch amendment is a blend of the best ideas.

In the time since the Deutch amendment was announced, several important issues have emerged:

1. Immediate Effect

Immediately upon adoption, this amendment would prohibit business corporations and their associations from using money or other resources to influence voting on candidates or ballot measures everywhere in America—at the federal, state, and local levels. The other proposals introduced in Congress do not do that.

Under the amendment introduced by Senator Tom Udall (D-New Mexico) and several other senators, we would have to wait for Congress and each state to pass laws regulating campaign financing, which may or may not include a ban on corporate spending. The version offered by Representative Jim McGovern declares that corporations, LLCs, and other corporate entities are not entitled to the constitutional rights of natural persons, but it is doubtful that simply saying that will automatically stop corporations from spending on elections. To implement that clause, either Citizens United and other cases will have to be re-litigated under the pre-existing McCain-Feingold and FEC laws, or Congress and each state would need to pass new laws that would be tested in court under the new amendment. Years would pass.

2. Banning Business Corporations' Free Speech

Already, the Heritage Foundation and other conservative voices are complaining about the loss of "free speech" that they claim corporations and business associations would suffer under the Sanders/Deutch amendment. Well, get used to the idea, guys. For over 50 years, nonprofit 501(c)(3) charitable organizations have been prohibited by the tax code from participating in the campaigns of candidates for public office. That's over a million public interest voices, from the American Cancer Society to your local Little League team, not allowed to endorse candidates, pay for broadcast ads, or make campaign contributions. They have been sidelined to protect the nonpartisan integrity of the charitable sector. The business sector needs to be sidelined from American elections to protect the integrity of our democracy.

By the way, the business corporations would function economically just fine under Sanders/Deutch. Their ability to own property, sell stock, make contracts, sue and be sued — all that is a matter of state law, not the federal constitution. They resort to claiming constitutional rights mainly when they don't like laws passed to stop them from harming or exploiting people.

3. Unions and Nonprofits

I could argue this one either way. The original constitutional amendment I drafted in January 2011 states that because only people can vote, only individual citizens should finance campaigns (along with public financing). No kinds of private organizations, except political committees comprised of individuals subject to public disclosure, could spend to influence our elections.

However, Sanders/Deutch valiantly attempts to draw a line between the business corporations and their associations, and the rest of us — sometimes called "civil society" — neither government nor commercial enterprises, but nonprofit organizations that represent the interests of human beings.

Labor spends far less than big business does on elections, and most of what unions spend is not from their general treasuries but from union members' dues, subject to a voluntary check-off system. Sure, the variety of nonprofit groups that get involved on election issues, from tax reform to health care to the environment to gun control to civil rights to war and peace, are "special interests," but the Sanders/Deutch amendment would allow them to spend on elections so long as they were not fronting for the economic interests of the business sector. And of course, Congress and the states would be authorized to fully regulate their expenditures with dollar limits and disclosure, because Sanders/Deutch would also overturn the 1976 Buckley v. Valeo decision equating money with speech.

To learn more about the Sanders/Deutch amendment, you can visit Senator Sanders' web site. If you like it, you can sign A Petition to Support the Saving American Democracy Amendment. Forty thousand people did just that within the first 24 hours.


Gregory L. Colvin is a principal at Adler & Colvin, a law firm in San Francisco specializing in the law of nonprofit organizations and deeply committed to serving the legal needs of the nonprofit sector. His practice includes political and lobbying activities of nonprofit organizations, fiscal sponsorship, donor advised funds, anonymous giving, grantmaking, and other issues that arise between individual donors and charities. Learn more.

Nonprofit Law Matters looks at legal issues in the nonprofit and tax-exempt organizations world. Written by the attorneys of Adler & Colvin, it provides updates and analysis regarding philanthropy, charity, and other exempt organization issues.

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