No doubt about it, large unlimited donations are flowing into SuperPACs from rich individuals and corporations aimed at influencing who is elected at all levels of government in 2012. With the SuperPACs and other forms of political committees regulated by the federal and state election agencies, or by the IRS under section 527, at least we know who the donors are.

But when political campaign expenditures are made by various forms of nonprofit, tax-exempt organizations, such as 501(c)(4) social welfare groups (like Crossroads GPS) or 501(c)(6) business associations (like the US Chamber of Commerce), there is no general law requiring their donors to be identified. So secret money in the millions, once again, flows in.

A number of Senators and members of the House of Representatives have proposed a new DISCLOSE 2012 Act to force public disclosure of secret donors in federal elections. A similar bill failed by one vote in 2010. If the new Act passes, will it solve the problem? It might help, but it wouldn’t be enough. In 29 pages, the Act is cumbersome at best.

You see, the underlying problem is that while 501(c)(3) charities are prohibited from any political campaign activity, the IRS has permitted, over decades, many of the other 501(c) categories to engage in a large amount of political intervention So long as the “primary” work of the organization serves an approved nonpartisan purpose, most of us in the nonprofit bar advise that it can make political expenditures of up to 49% annually and still qualify as tax-exempt.

The main problem that frustrates any disclosure regime is that the IRS allows these 501(c) groups to be tax-exempt despite their multiple purposes and multiple programs.

It is very difficult to create rules that accurately trace political spending back to original sources in a multi-purpose organization. How far back do you go? Do you count the dollars first-in first-out or last-in first-out? Do you allocate the spending proportionately over all the donors? Do you let the organization say that the money came from investments, T-shirt sales, and small donors, and not from any big donors?

The danger is that those who paid with no idea that their dues or gifts would be used for politics will get disclosed, losing their privacy, and others who gave with a wink will not.

Therefore, I believe Congress should put its foot down and amend the Internal Revenue Code so that an organization with a good, qualifying nonprofit purpose has a very tight limit on how much political activity the IRS will tolerate. This language would do it:

Proposed new Internal Revenue Code Section 501(t)

(t) LIMIT ON POLITICAL EXPENDITURES

(1) IN GENERAL.–No organization shall be exempt from tax under subsection (a) if its expenditures to participate in, or intervene in (including the publishing or distribution of statements), any political campaign on behalf of (or in opposition to) any candidate for public office, exceed the lesser of $100,000 or 10% of its total expenditures for any taxable year.

(2) PROHIBITED POLITICAL EXPENDITURES.–This section shall not be interpreted to sanction or permit any political expenditure described in subsection (1) above if the organization is otherwise prohibited from making such expenditures under section 501(c).

(3) EFFECTIVE DATE.–This section shall apply to all taxable years of an organization that begin after the date this section is enacted.

If the organization wants to spend more on politics, it must do so through a separate political committee that reports all donors over a certain threshold ($200 in the FEC and IRS 527 systems). That has been the goal of political campaign reform legislation for almost 40 years.

Although I propose a $100,000/10% limit, Congress could choose a higher or lower cap. It could be $1 million and 20% to follow the liberal pattern applied to 501(c)(3) public charity lobbying. Or it could be tighter, say $50,000 and 5%.

Whatever the level, there should be a small allowance for political spending by these 501(c) interest groups so that they can make their preferred candidates known to their members and the public, especially community groups that want to endorse candidates in local races.

I want to be open about the history of the idea I am proposing:

* In 2004, Miriam Galston and I co-chaired a task force within the American Bar Association Tax Section that proposed a 40% political safe harbor for 501(c)(4) entities to the IRS, with no response.

* Later, Miriam wrote a law review article arguing that the political limit should be lower, i.e. “insubstantial” to be consistent with the treatment of other non-qualifying activities (such as private benefit) under federal tax law, thereby requiring tax-exempt organizations to be “whole-heartedly” devoted to their approved purposes.

* Recently, the reform groups Democracy 21 and Campaign Legal Center have complained to the IRS that its interpretation of the Internal Revenue Code has been wrong all these years, allowing too much 501(c) electioneering. But the IRS has been consistent. It has never used “insubstantial” as the limit for 501(c) politics; it uses “less than primary,” letting us think we can go up to 49%.

In fairness to the many 501(c) organizations that have been operating under this system, they should be able to finish their current tax years before they are required to split off most of their political spending into separately-funded PACs. Those that refuse, that want to keep serving as vehicles for big, secret political donations should be edged out of the tax-exempt universe.

Congress can fire the silver bullet, and it should.

Reintroducing the Citizens Election Amendment….

Version 2.0

Since the U.S. Supreme Court decided the Citizens United case two years ago, saying that the Constitution gives corporations the right to spend without limit to influence American elections, people have been asking “how can we amend the Constitution to put this right?”

Now we are in the midst of the first presidential campaign since Citizens United, and we are seeing the result: a combination of “independent” SuperPACs, their related 501(c)(4) groups, and 501(c)(6) business associations raising and spending more than most of the candidate and party committees. So far as we can tell, the largest sources of money are, first, wealthy individuals, second, business corporations, and third, labor unions.

The U.S. Supreme Court has told us this is all OK; independent political expenditures won’t corrupt our democracy. But as Groucho Marx said, “who are you going to believe, me or your own eyes?”

The attack ads funded by these wealthy sources mean life or death for candidates and incumbents. Of course they have the power to corrupt. Even when big money may not corrupt, it surely distorts the outcome. Almost always, the candidate with the most money behind him or her, wins.

In this country, each person has one vote, no matter whether you are rich or poor. And it is illegal to buy or sell a person’s vote. So why do we allow electoral influence to be bought and sold? Why has politics in America become a commodity in an economic marketplace, where the richest individuals, corporations, business associations, and unions can buy enormous leverage on our elections?

It is not enough to declare that corporations have no constitutional rights, or to give Congress and the states the power to regulate all political contributions and expenditures. Those are only partial remedies. They depend on future legislatures rising up against the economic oligarchy in America and imposing money caps that can’t be circumvented.

Past attempts to regulate campaign finance have been like the “squishy balloon”—squeeze it in one place, it pops out another. Limit what goes to candidates, it goes to parties. Clamp down on party fundraising, it goes to independent 527s. Disclose donors to 527s, and then the unlimited, anonymous money goes to 501(c) nonprofits. All the while, wealthy individuals still spend huge amounts to seek their own elections and force their opponents to try to match them.

The only way to drive big money entirely out of politics is to adjust our system of campaign finance to the scale of the individual voter, who has one vote to cast for each office or measure, and no more. The only source of money to influence American elections should be the individual citizen (with reasonable limits) and, at the option of the federal or state government, public financing.

What if the U.S. Constitution had a limit on the amount each citizen could donate or spend to influence the votes of other citizens, including a candidate’s own personal expenditures in pursuit of public office? This could be capped at a modest amount, like a percentage of the median annual household income in America, currently about $52,000. Why should anyone be allowed to contribute or spend a sum to persuade others how to vote that is far more than what the average person could afford?

What follows is a draft of a Twenty-Eighth Amendment to the Constitution that would achieve a thorough, citizen-based, reform of our campaign finance system. Some may say this is unachievable, but it may serve as a marker showing how we could—if we wanted to—completely prevent corporate and personal wealth from dominating elections in our free republic. To stop unlimited independent campaign expenditures, immediately upon adoption of the amendment, not only must we reverse the 2010 Citizens United decision as to corporations, but also the 1976 Buckley v. Valeo decision as to individuals.

Amendment XXVIII “Citizens Election Amendment” Version 2.0

Section 1. Only natural persons who are citizens of the United States may make contributions and expenditures to influence how other citizens vote, although Congress and the States may also institute systems of public financing for election campaigns.

Section 2. Congress and the States shall have power to implement this article by measures to set limits on the amounts of each citizen’s contributions and expenditures, including a candidate’s own spending, and authorize citizens to establish committees to receive, spend, and publicly disclose the sources of contributions and expenditures, and by other appropriate legislation.

Section 3. No citizen shall make contributions or expenditures in any year, directly or indirectly, in money or anything of value other than personal time and effort, to influence how other citizens vote, in excess of ten percent of the nationwide annual median household income, based on the most recent census data.

Points to note:

* If this amendment were enacted this year, the constitutional money cap would be about $5,200. That’s the total of what citizens could spend each year on election campaigns–on candidates they support or oppose and on ballot measures. Congress and the states could impose further limits, such as minimum age requirements and limits on contributions made to each candidate (there is currently a cap of $2,500 on an individual’s direct contribution to a federal candidate).

* Campaign donations and spending by all sources other than individual citizens would be eliminated: corporations (whether for-profit or nonprofit), labor unions, business associations, banks and trusts, foreign donors and multi-national conglomerates would be barred, but public financing would be permitted.

* The amendment would apply to all citizen votes held at all levels of government—federal, state, and local—on the nomination and election of candidates for public office and on ballot measures as well.

* In order to finance election campaigns, the political parties, labor unions, business associations, and other interest groups would have to become skilled aggregators, convincing individual citizens to donate within the constitutional cap and within such limits (and disclosure requirements) as Congress or the states may enact. Citizens sharing common political interests could aggregate their donations in committees, which could be controlled by candidates or parties or could be independent.

* I offer Section 3, the constitutional money cap, with some trepidation. As a general principle, the Constitution should not be the place to limit a citizen’s rights. However, sometimes the liberty permitted to one citizen can intrude on the freedom and equality enjoyed by others. Before the Thirteenth Amendment abolished slavery, a citizen had the recognized “right” to own, buy, and sell another human being; that right had to give way so that all people could be free.

* We cannot have truly free and fair elections in America if political influence can be purchased by the highest bidder. This amendment expands, elevates, and protects the rights of the citizen voter to be the sole source of campaign funds, ensuring the democratic character of our elections with a constitutional guarantee of equality.

(Greg Colvin is an attorney in San Francisco specializing in tax-exempt law, including political and lobbying activities of nonprofit organizations, who has written and lectured on the subject for over 20 years. He proposed Citizens Election Amendment 1.0, without the mandatory money cap, on January 20, 2011, the one-year anniversary of Citizens United. Access his writings on the movement to amend the Constitution by clicking on his byline above.)

On Thursday, December 8th, Senator Bernie Sanders (I-VT) 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” http://sanders.senate.gov/newsroom/news/?id=d4a61731-be04-4b9a-95b9-7fdba12febd2 but the language is identical to the “OCCUPIED” amendment offered in the House by Rep. Ted Deutch (D-FL), inspired by the Occupy Wall Street movement and beginning to attract co-sponsors.

On November 18th, I posted a blog here 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%” http://www.ourfuture.org/blog-entry/2011114618/finally-constitutional-amendment-99 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 Sen. Tom Udall (D-NM) 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 Rep. 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, http://www.ourfuture.org/blog-entry/2011010320/only-people-can-vote-only-people-should-finance-campaigns 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.

If you like the Sanders/Deutch amendment, visit the website and sign the petition http://sanders.senate.gov/petition/?uid=f1c2660f-54b9-4193-86a4-ec2c39342c6c. Forty thousand people did just that within the first 24 hours.

There is a growing movement of people fed up with corporations-as-persons, money-as-speech, elections-for-sale in America. They are ready to amend the US Constitution as the only sure way to reverse the Supreme Court’s decisions in Citizens United v. FEC and Buckley v. Valeo. But what’s the best amendment? Sanders/Deutch or Udall/Sutton? Move To Amend or Free Speech for People?

Here are twelve questions to put the choice of language in an analytical framework. Every drafter should be able to answer them.

1. What is the main purpose? Is it to drive the big money, from all sources, out of elections? Or is it to abolish corporate personhood?

2. If none of the rights extended to corporations are still protected by the Constitution, what would the consequences be — outside of the realm of elections?

3. What would happen the day after the amendment was adopted? Would corporate and business spending in elections stop immediately or would legislation and litigation be required?

4. What kinds of legal entities does the amendment apply to?

a. business corporations
b. nonprofit corporations
c. labor unions
d. other forms of organization (associations, trusts, LLCs, partnerships)
e. all of the above

5. How should the campaign spending of individuals (including candidates) be regulated?

a. no limits on personal spending
b. authorize Congress and the states to set limits
c. set dollar limits in the Constitution
d. prohibit completely

6. Should all campaign contributions and expenditures be publicly disclosed? Or should Congress and the states allow small donations to be anonymous? In view of all that secret money that flows through nonprofit groups for political “issue ads,” how do we force them to disclose their sources?

7. Should public financing of campaigns be required, permitted, or prohibited?

8. Does the amendment cover both candidate elections and public votes on ballot measures?

9. Are all levels of government covered: federal, state, city, town, and county?

10. Is any special wording needed to protect freedom of the press?

11. Should other subjects be covered in the amendment, such as making election day a holiday, shortening the campaign season, simplifying voter registration, requiring paper ballots, addressing voter disenfranchisement?

12. Should there be two or more amendments to carry different aspects of these issues, or one unified proposal?

…and of course, is the language as brief and clear as it can be?

My answers would be:

1. Drive big money out of elections.
2. Takes a lot of legal study to be sure about this.
3. Immediate effect.
4. e. – although the business entities are the biggest danger.
5. b. – use legislation to set limits.
6. Legislatively, force disclosure of all large donors whose money is used for politics.
7. Permit.
8. Both.
9. All.
10. No.
11. No.
12. One, though some days I think abolishing corporate personhood should be separate.

This is the sixth piece I’ve written this year on this subject. In January I proposed a simple version: only citizens can vote, only citizens should finance campaigns. In April I compared the main alternatives offered at that time. In November I pointed out the problems with a single focus on corporate personhood, followed by two blogs praising Deutch and then Sanders for what they introduced — as the best so far. (Click on my name above to access them.)

But what I really think we need is for all the proponents to get their ideas out on the table, have a big summit conference, test each approach using criteria such as these twelve, and forge a unified amendment.

Today, Congressman Ted Deutch (D-FL) offered the strongest constitutional amendment introduced in either House of Congress so far to rectify the imbalance of power between the corporations and the people in our democracy.

As the struggle in the streets intensifies, and Occupy Wall Street refuses to remain silent, it’s good to know there are champions in Congress who have stepped up to the challenge of amending the US Constitution. It’s called OCCUPIED: Outlawing Corporate Cash Undermining the Public Interest in our Elections and Democracy, here.

The Supreme Court, in the 5-4 Citizens United decision of January 2010, declared that corporations have free speech rights like human beings and invalidated the ban on corporate election spending that Congress had enacted. Since then, a grassroots movement has emerged to generate popular support for a constitutional amendment to reverse that decision, including months of work by Move to Amend, Free Speech For People, Public Citizen, People For The American Way, Common Cause, and the Center for Media and Democracy.

Rep. Deutch’s amendment is a blend of the best ideas.

1. The rights protected by the Constitution belong to human beings (natural persons).
2. Constitutional rights do not extend to for-profit corporations or other business entities, nor do they extend to chambers of commerce that promote business interests.
3. The constitutional rights of other non-profit corporations, such as charities, churches, schools, hospitals, clubs, unions, and environmental groups remain in place.
4. 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 anywhere in America—at the federal, state, and local levels.
5. Counteracting the 2010 Citizens United case and the 1976 Buckley v. Valeo case, Congress and the states would once again have the authority to regulate and set limits on all election contributions and expenditures, by any group or person.
6. This would empower Congress and the states to control election spending by CEOs and other wealthy individuals, including those rich enough to pay for their own campaigns.

Comparing the OCCUPIED amendment to some of the others proposed:

Unlike the amendment offered by Rep. Jim McGovern (D-MA), the Deutch amendment does more than remove constitutional rights from corporations, LLCs, and other corporate entities. It reaches all forms of business enterprise, but without the unintended consequence of stripping constitutional rights from unions and nonprofit public interest corporations, such as the Sierra Club, NAACP, Planned Parenthood, and your local community center. The McGovern amendment would not automatically prohibit corporate election spending and would not enable Congress and the states to set limits on election spending by the wealthy. The Deutch amendment does both.

Unlike the companion amendments introduced by Sen. Tom Udall (D-NM) in the Senate and Rep. Betty Sutton (D-OH) in the House, the Deutch amendment goes beyond simply authorizing Congress and the states to regulate campaign financing. It removes the shield of constitutional rights from business corporations and their associations, and imposes an immediate, nationwide ban on corporate election spending.

Unlike the ideas floated by TV commentator Dylan Ratigan and Professor Larry Lessig, the Deutch amendment would not use the Constitution to prevent citizens from donating to the candidates of their choice, or to chisel a dollar limit on individual donations into constitutional stone. Wisely, the Deutch amendment protects and does not diminish individual rights, and leaves the matter of setting contribution and expenditure limits to the people through the federal, state, and local legislative processes.

Rep. Donna Edwards (D-MD) and a number of co-sponsors in the House bravely introduced the first attempt at drafting an amendment in Congress some months back. Hopefully, she and her colleagues will recognize that the spirit in the streets and around kitchen tables and the level of legal craftsmanship have progressed to the point where a stronger amendment like Rep. Deutch’s deserves their support.

Personally, I proposed a simple amendment in January 2011, that would limit campaign financing to the donations of individual citizens only. I still think that’s a good idea, but I have to recognize the value of combining everyone’s best thinking into a comprehensive reform amendment. Rep. Deutch has done that with OCCUPIED. Let’s join him.

We’ve seen the signs and heard the chants: “Abolish Corporate Personhood!”

I’m very sympathetic to the cause of reducing the power of big business corporations to control our government, our economy, our consumer culture, our society, and our lives. We can’t have democracy without a major shift of power into the hands of the people.

But would an amendment to remove all rights of corporations from the US Constitution accomplish that? Would there be unintended consequences?

There are two problems with a constitutional amendment that abolishes corporate personhood. One, it does too much, and two, it does too little.

Too much? It would affect not just the big for-profit corporations, but small Mom and Pop corporations and all those non-profit corporations as well. And the rights that would be taken away are not just the rights to free speech via election spending, but also the protections of due process, equal protection, search and seizure, and privacy.

So think about it. Do you want the police to search the offices of the Sierra Club without a warrant? Do you want the NAACP to have no right to protect the privacy of its membership list? Do you want the state to take the property of a community hospital to widen a highway, without just compensation under eminent domain? If Planned Parenthood needs to defend itself in court, should it have no right to counsel, no protection against self-incrimination or double jeopardy?

Too little? It wouldn’t touch business entities that are not in the corporate form, such as partnerships, trusts, unincorporated associations, LLCs and LLPs, joint ventures, you name it. The business world is very adept at creating new types of legal entities to escape government regulation and they will, count on it.

Even more critically, abolishing corporate personhood wouldn’t touch the wealthy CEOs and other individuals who would continue to enjoy the free speech rights to spend as much as they want on elections, whether they be David Koch, Meg Whitman, Bill Gates, or Michael Bloomberg. Most of the money spent by Art Pope on North Carolina elections appears to be his own, not from the corporate treasury of his Super Dollar stores.

The solution? Shift your frame a bit. Focus on the people. Only people can vote, so only people should finance campaigns. Get all the artificial legal entities out of the political spending arena. Clear the field so that only individual citizens can play. And give Congress and the States the power to set limits on what any one person can spend to get someone elected or defeated.

This is what I proposed here last February:

Amendment XXVIII
Section 1. Only natural persons who are citizens of the United States may make contributions and expenditures to influence the exercise of a citizen’s right to vote, although Congress and the States may also institute systems of public financing for election campaigns.

Section 2. Congress and the States shall have concurrent power to implement this article by measures that may set limits on the amounts of each citizen’s contributions and expenditures, including a candidate’s own spending, and authorize citizens to establish committees to receive, spend, and publicly disclose the sources of contributions and expenditures, and by other appropriate legislation.

Short. Only 95 words.

If this amendment were adopted, and the people had the upper hand in our electoral system, would we still think it necessary to abolish all other corporate constitutional rights? Maybe, maybe not.

Among those who feel the only way to overcome the Citizens United decision, which opened the door to unlimited corporate spending on elections, is to amend the U.S. Constitution, the question on everyone’s mind is: “So what’s the language?”

I offered a version of my own, the Citizens Election Amendment, posted three months ago at this site. It got a pretty good response (over 400 people “liked” it on Facebook) and last week I was in Washington, DC, talking to several members of Congress about it.

The main approach I take is to build upon the individual citizen’s constitutional RIGHT TO VOTE (a right that Americans have shed blood and died for), protecting and expanding it to give citizen human beings the right to be the sole source of funding for election campaigns.

I feel obliged, though, to try to compare several alternative versions that have been offered. Drafting the language is a difficult challenge. There are problems of purpose, scope, clarity, and unintended consequences—not to mention acceptance by two-thirds of both Houses of Congress, three-quarters of the state legislatures, and the American people.

Here are the five options I’ve looked at, in addition to my own. My analysis is summarized in chart form at the bottom of this post, titled “Comparing Draft Constitutional Amendments after Citizens United” (problematic elements highlighted in yellow).

1. Rep. Donna Edwards, introduced in January, 2010, found here.
2. Sen. Max Baucus, introduced in July, 2010, found here.
3. Rep. Marcy Kaptur, introduced in January, 2011, here. This is similar to, but shorter than, a version introduced in 2010 by Senators Dodd and Udall.
4. A version from Jeff Milchen and David Cobb, from Thom Hartmann’s book excerpt “Wal-Mart Is Not a Person,” found here. Milchen and Cobb are associated with MoveToAmend.org, which is going through a broad democratic process before presenting an official version.
5. From Free Speech for People, two versions (A and B), found here. See FreeSpeechforPeople.org.

The proposed amendments basically fall into two categories, with differing purpose and scope:

• Fix Campaign Finance (Edwards, Baucus, Kaptur, Colvin)
• Abolish Corporate Personhood (Milchen/Cobb, Free Speech for People)

The amendments introduced by Edwards, Baucus, and Kaptur have no automatic impact on the financing of American elections; they simply authorize Congress and the States to pass campaign finance laws without fear that the U.S. Supreme Court will strike them down as unconstitutional. This is a moderate approach, aiming to revive the reform legislation passed during the forty years before Citizens United.

The earliest version, from Donna Edwards, authorizes regulation of “expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity.” No definition of “political speech” is provided. Further, only corporate entities and LLCs are covered, leaving unions, banks, trusts, coops, unincorporated associations and other legal entities unregulated.

The Baucus version addresses only corporations and labor organizations, leaving LLCs and all the other forms of legal entities untouched.

The Kaptur amendment, like the Dodd/Udall version from 2010, authorizes Congress and the States to set limits on the amount of contributions accepted by, and the amount of expenditures made by, in support of, or in opposition to, a candidate. This has the advantage of covering all players: corporations, unions, LLCs, any other kind of legal entity, and wealthy individuals.

Milchen/Cobb and FreeSpeechforPeople offer amendments to establish that constitutional rights are only for natural persons (human beings), stripping corporations and perhaps some other types of entities of any constitutional rights, including political and commercial speech, and other civil rights in areas such as search and seizure, eminent domain, criminal defense, due process, and equal protection of the law.

Remember, when we use the word “corporation” we are referring not only to Wal-Mart, Exxon, and General Motors, but to nonprofit organizations like the Sierra Club, the AARP, and your favorite church, hospital, and university.

In other words, the complete dismantling of corporate rights under the U.S. Constitution could have unintended consequences. If such an amendment were adopted, Congress and each State would need to adopt a patchwork of new laws, likely to vary among the jurisdictions, in order to fill the gaps.

Looking at the specific amendments, Milchen/Cobb goes further and would prohibit corporations and “other for-profit institutions” from influencing elections, legislation, or government policy. Nonprofit rights are unclear.

Free Speech for People offers two versions: (A) is a complete removal of corporate constitutional rights and (B) would remove only corporate First Amendment rights. Both use the same incomplete language as the early Edwards version, “corporation, limited liability company/entity, or other corporate entity,” leaving the rights of unincorporated unions, trusts, banks, associations, etc., untouched.

None of the anti-corporate personhood proposals would deal with campaign spending by wealthy individuals, including the candidates themselves. So, the corporate CEOs and rich stockholders could spend enormous amounts from their personal fortunes (as the ancient Romans did) to influence the outcome of elections in their favor.

Finally, the Citizens Election Amendment that I propose is limited to the problem of campaign finance. Unlike Edwards, Baucus, and Kaptur, it has automatic effect by making individual citizens the only permitted source of campaign funding, eliminating corporations and all other entities from the field. Like the Kaptur amendment, it would allow Congress and the States to regulate the personal spending of wealthy individuals, so that the intention of this reform could not be circumvented.

Unlike the others, my amendment would specifically: (1) address how citizens might legally aggregate their contributions (via a registered political committee; think MoveOn.org Political Action), (2) cover initiatives, referenda, bonds, and other ballot measures, and (3) permit public financing of elections.

Should we be debating which version is the best? Or should there be two—one to thoroughly address campaign finance reform and another to abolish or restrict the constitutional rights of corporations and other legal entities?

Perhaps both are worthy of consideration and should be advanced on separate, but complementary tracks.

Then, we can evaluate the options based on our experience in 2012, likely to be the most expensive campaign season in American history.

Greg Colvin is an attorney in San Francisco specializing in tax-exempt law, including political and lobbying activities of nonprofit organizations, who has written and lectured on the subject for over 20 years. The Citizens Election Amendment was developed in concert with Barry Kendall, executive director of Progressive Ideas Network, a project of Demos, and Lisa Graves, executive director of Center for Media and Democracy.

colvin@adlercolvin.com
415-421-7555 x211

Introducing the Citizens Election Amendment….
Version 1.0

Since the U.S. Supreme Court decided the Citizens United case exactly one year ago tomorrow, saying that the Constitution gives corporations the freedom to spend without limit to influence American elections, people have been asking “how can we amend the Constitution to put this right?”

In this country, each person has one vote, no matter whether you are rich or poor. And it is illegal to buy or sell a person’s vote. So why do we allow electoral influence to be bought and sold? Why has politics in America become a commodity in an economic marketplace, where the richest corporations, business associations, unions, and individuals can buy enormous leverage on the outcome of our elections?

It is not enough to declare that corporations are not legally persons, or to give Congress and the states the power to regulate the political contributions and expenditures of corporations and labor unions. Those are only partial remedies.

Past attempts to regulate campaign finance in America have been like the “squishy balloon”—squeeze it in one place, it pops out another. Limit what goes to candidates, it goes to parties. Clamp down on party fundraising, it goes to independent 527s. Disclose donors to 527s, the unlimited, anonymous money goes to 501(c)(4)’s. All the while, wealthy individuals still spend huge amounts to seek their own elections and force their opponents to try to match them.

The only way to drive big money entirely out of politics is to adjust our system of campaign finance to the scale of the individual voter, who has one vote to cast for each office or measure, and no more. The only source of money to influence American elections should be the individual citizen and, at the option of the federal or state government, public financing.

Congress and the States, if they choose to, should be able to limit the amount each citizen can donate or spend to influence a specific vote, including a candidate’s own personal expenditures in pursuit of public office. This could be capped at a modest amount per vote, like the median annual household income in America, currently about $50,000. Why should anyone be allowed to contribute or spend more than that to persuade others how to vote?

What follows is a draft of a Twenty-Eighth Amendment to the U.S. Constitution that would enable a thorough, citizen-based, reform of our campaign finance laws. Some may say this is far-fetched, but it may serve as a marker showing how we could—if we wanted to—completely prevent corporate and personal wealth from dominating elections in our free republic.

Amendment XXVIII “Citizens Election Amendment” Version 1.0

Section 1. Only natural persons who are citizens of the United States may make contributions and expenditures to influence the exercise of a citizen’s right to vote, although Congress and the States may also institute systems of public financing for election campaigns.

Section 2. Congress and the States shall have concurrent power to implement this article by measures that may set limits on the amounts of each citizen’s contributions and expenditures, including a candidate’s own spending, and authorize citizens to establish committees to receive, spend, and publicly disclose the sources of contributions and expenditures, and by other appropriate legislation.

Points to note:

* Campaign donations and spending by all sources other than individual citizens would be eliminated: corporations (whether for-profit or nonprofit), labor unions, business associations, banks and trusts, foreign donors and multi-national conglomerates, but public financing would be permitted.

* The amendment would apply to all citizen votes held at all levels of government—federal, state, and local—on the nomination and election of candidates for public office and on ballot measures as well.

* In order to finance election campaigns, the political parties, labor unions, business associations, and other interest groups would have to become skilled aggregators, convincing individual citizens to donate what they could afford within such limits as Congress or the states may enact. Citizens sharing common political interests could aggregate their donations in committees, which could be controlled by candidates or parties or could be independent.

* Hopefully, Congress and the States would move toward a single nationwide interpretation of the phrase “to influence the exercise of a citizen’s right to vote,” such as the Internal Revenue Service definition of “political intervention” that applies to all tax-exempt organizations and taxpayers, if that standard could be clarified and improved. (Colvin, “Political Tax Law after Citizens United: A Time for Reform,” The Norman A. Sugarman Memorial Lecture in Nonprofit Law at Case Western Reserve University, Cleveland, Ohio, April 2010, published at 66 Exempt Orgs Tax Rev 71 (July 2010),http://www.adlercolvin.com/attorneys/gregory-colvin.php and video at http://www.youtube.com/watch?v=9ymS7qvvo6U)

* This amendment expands, elevates, and protects the rights of the citizen voter to be the sole source of campaign funds, ensuring the democratic character of our elections.

Greg Colvin is an attorney in San Francisco specializing in tax-exempt law, including political and lobbying activities of nonprofit organizations, who has written and lectured on the subject for over 20 years.

We have been told this is our moment
And so we come to the table
With our pent-up agenda,
Eager to load our cafeteria trays,
While the raging, wounded bull
Standing in the doorway
Could be ours for the taking
And all our people could be fed.

It is time to ask ourselves,
Are we progressives for
Sentimental and marketing reasons?
Or do we deeply understand
The world’s present predicament
And our opportunity to fix it?

Friends, there are words we need to know
And use openly, fearlessly:
Finance capital, oligarchy,
And revolution.

Progressive means having the undaunted character
To pursue reform through the existing system,
But to be willing and able
When a crisis gives us the chance,
Perhaps once in our lifetimes,
To be revolutionaries and change things utterly.

Revolution could mean a fundamental shift
In the balance of power between the people,
Represented by our democratically-elected government,
And the oligarchy of wealth led by the finance capitalists.

Without it, leaving the oligarchy in place,
Our reforms are at best mild and temporary,
At worst dead on arrival.

With it, the heavy hand of finance capital in check,
The prospects for reform for the rest of us
Are vastly improved.

Sons born after Japan surrendered,
Daughters born after Nixon resigned,
Our country is ready for you
To take this matter in hand.

The finance capitalists:

Also known as Wall Street,
The big banks,
The economic royalists,
The elite of the power elite.

Titans whose money is made
From money itself.

These are the people that Bill Moyers,
Simon Johnson, Dean Baker,
Naomi Klein, and Richard Posner
Have been trying to tell us about.

They sit astride the global business system,
The dominant institution
On the planet
In this century.

They form an oligarchy of wealth
More powerful than any nation
Or government.

They shape the choices and
Dictate the terms that
Mere public servants must follow.

They blackmail us with threats
Of worse financial ruin
If they don’t get their way.

Claim to be too big to fail.
Do what they can get away with.

They demand to be protected from
The dynamics of free enterprise and competition,
That would reward honesty and care with success,
Recklessness and fraud with failure.

They have angered the public
On all sides,
With their bailouts and
Bonuses and attitude of
Entitlement to hard-earned
Taxpayer money.

These titans caused this economic meltdown,
Yet expect to remain in charge of the recovery.

They expect — and get –
Supreme deference.

They have committed crimes
For which they should be prosecuted.

They have built a financial sector in our country
Twice as big as it ought to be,
As Kevin Phillips, George Soros, and others have told us.

They are planning, even now,
To re-enrich themselves,
Buy up the devalued assets,
Of those they frightened
Out of the marketplace.

These oligarchs are the largest bloc of donors
To congressional election campaigns.

With the power to block most of the reforms
Obama has proposed for
Student loans,
Foreclosure relief,
Individual bankruptcy,
And anything else that touches their empire.

They “own this place,”
Says Senator Richard Durbin.

They have us hooked on borrowing and spending
On things,
When we should be saving and sustaining
Our spirits.

Today, they are in the news,
Their sins and stupidities
For all to see.

We will learn their dismal science.
Take them on. Pull out all the stops.

Break them up into smaller units,
Under new and stronger anti-trust laws
To curb their monopoly power.

Hold them accountable
To their own stockholders, and
To the republic that gave them life.

Make them prove their drugs aren’t toxic
Before they go to market.

Regulate them down to their socks.
Bring them to heel.

Revolution, according to Gary Hart, requires
1. a crisis (yep),
2. a charismatic leader (uh huh), and
3. a manifesto (uh….working on that).

Don’t worry, Aunt Betty. It will not mean
A violent overthrow of the government.
We will prove Marx wrong on that.
It will be a peaceful uprising of democratic power
That breaks the grip of the dictatorship of wealth
And lets our freely-elected officials
Govern our republic.

This time, the pitchforks are symbolic.
The anger and commitment is real.
The weapons are the ones we’ve used
Since Montgomery and Selma,
Since McCarthy in New Hampshire,
Since Watergate,
Since Obama in Iowa.

The revolution will not be televised
as Gil Scott-Heron sang,
(before Al Gore invented the internet).

Don’t start it without me
Says Jesse Ventura, surfing,
Living off the grid in Baja.

Revolution is about remaking our social contract
For the twenty-first century.

It is a word many of us
Grew up believing in
And do not fear.

Progressive is not a station on the political dial
Between liberal and conservative,
Left and right, but
A restless voice calling us
To transform our society.

Progressive is not a substitute for the word liberal.
We answer to liberal because we are inclined
To trust in the goodness of human nature.
We differ with the conservative doctrine
That mistrusts and fears the people,
As Jefferson said.

They say, “Sink or swim.”
We say, “We are all in this together.”

We are liberal, and more.
We are here to resolve the paradoxes of left and right.
We are for the upward movement of bold policies
To resolve old partisan debates
About immigration,
Global warming,
How we get our energy,
Health care,
Progressive taxation,
Foreign affairs,
All of that,
And place our nation on a new footing
With the consent of the governed
And a decent respect for the rest of the world.

A joinder of people of good faith,
Broader than we ever imagined,
Liberals to trust,
Conservatives to verify.

We are linked by history to
Our brave progressive ancestors
At the dawn of the twentieth century,
Who busted the trusts,
Ended child labor,
Enacted the 8-hour day,
Established national parks,
Gave women the right to vote,
And tried to institute a mixed system of government
That the industrial class could not always dominate.

Now, it is our turn to talk and make
Our revolution.

It may escape our grasp, though,
If we do not start to seize it
Before the Dow hits 10,000 again.

The revolution will not be right back after a message
About a white tornado, white lightning, or white people.
You will not have to worry about a dove in your
Bedroom, a tiger in your tank, or the giant in your toilet bowl.
The revolution will not go better with Coke.
The revolution will not fight the germs that may cause bad breath.
The revolution will put you in the driver’s seat.

– Gil Scott-Heron, The Revolution Will Not Be Televised

At Tuesday night’s debate, the presidential candidates were asked a question that I believe deserves much more attention.

“BROKAW: Sen. McCain, for you, we have our first question from the Internet tonight. A child of the Depression, 78-year-old Fiora from Chicago.
Since World War II, we have never been asked to sacrifice anything to help our country, except the blood of our heroic men and women. As president, what sacrifices — sacrifices will you ask every American to make to help restore the American dream and to get out of the economic morass that we’re now in?”

In my 2006 essay The Progressive Trinity http://www.washingtonmonthly.com/features/2006/0606.colvin.html, I wrote:

“Because Public Service is fundamentally based upon unselfish efforts for the benefit of all of us, that quality must be embodied in the public leader. Especially so for political leaders because we have no choice but to be ruled by them until they leave office.

We have seen people become leaders because they are master manipulators, or sheer opportunists, or charismatic salesmen, or anointed by the oligarchy of wealth and influence that works behind the scenes. We try, as best we can, to project our desires for statesmanship and compassion and wisdom onto the presidents and governors we elect, but we are too often severely disappointed by their behavior.

The paramount criterion for candidates to the highest offices in Public Service should be: is this person able, by their own example, to inspire sacrifices for the common good? ”

How did Senators McCain and Obama answer?

John McCain fumbled around with a riff on eliminating government programs, earmarks, an across-the-board freeze on spending except for defense, veterans, and “other vital programs.” He didn’t say exactly which programs would be cut, but I suppose bailing out Wall Street is a vital program now, and so is continuing the Bush tax cuts for the wealthy, because he didn’t offer to give them up.

Disappointing for a man who brought his acceptance speech to a climax by saying:

“My friends, if you find faults with our country, make it a better one. If you’re disappointed with the mistakes of government, join its ranks and work to correct them. Enlist in our armed forces. Become a teacher. Enter the ministry. Run for public office. Feed a hungry child. Teach an illiterate adult to read. Comfort the afflicted. Defend the rights of the oppressed. Our country will be the better, and you will be the happier. Because nothing brings greater happiness in life than to serve a cause greater than yourself.”

Barack Obama gave a better answer, but it seemed like he still does not recognize the tremendous potential that a fully honest and prophetic answer could have. He said:

“I think the American people are hungry for the kind of leadership that is going to tackle these problems not just in government, but outside of government. … There is going to be the need for each and every one of us to start thinking about how we use energy. … [E]ach and every one of us can start thinking about how can we save energy in our homes, in our buildings….

I think the young people of America are especially interested in how they can serve, and that’s one of the reasons why I’m interested in doubling the Peace Corps, making sure that we are creating a volunteer corps all across this country that can be involved in their community, involved in military service, so that military families and our troops are not the only ones bearing the burden of renewing America.”

A truly great leader, with the leadership character of a Lincoln or a Kennedy, would have to look into the next decade and call out those challenges that can only be met by inspiring Americans to set aside their personal comforts and make deep sacrifices for the common good.

This is the essence of progressive political philosophy: We are all in this together. “Every man for himself” and “do what you can get away with” has led us into this mess. We can only pull together to solve the enormous problems that face our country if we can trust and respect each other. And we can only do that if we have an unselfish leader who deserves our trust and respect.

Is there any doubt that universal health care, for those who need it most, will need to be paid for by the young and healthy?

Is there any doubt that we will not stop the polar ice caps from melting and the oceans from rising unless we can stop burning fossil fuels at the rate we have been?

The 78-year-old caller from Chicago no doubt remembers, as fewer and fewer of us alive today do, that World War Two required incredible sacrifices. Detroit was ordered to stop making cars and build only tanks and airplanes. Gasoline was rationed. You couldn’t buy sliced bread because steel was needed for the war effort. Does any conscientious person truly doubt that the same level of sacrifice will be needed to stop global warming? Perhaps the Greatest Generation is yet to come.

So, let’s start a list of the sacrifices that the candidates should share with us:

1. Energy conservation. By every reasonable voluntary and mandatory means, we will need to curtail our wasteful use of fossil fuels and conserve our oil resources. Now. Not after we have converted to electric cars and hydrogen fuel cells and the other technological breakthroughs we hope for. We need to keep our remaining offshore oil and Alaskan oil in the ground if our grandchildren will be able to fly on airplanes and have an Air Force to protect them. Come to think of it, climate change also means conserving other resources, too, like water and fisheries.

2. Paying for the war in real time. We cannot keep fighting the war on terror in Iraq and Afghanistan and elsewhere without paying for it now. To pay for the war in Vietnam at the time it was happening, the rich in America paid an income tax surcharge and Lyndon Johnson sold off Fannie Mae. George Bush, incredibly, has reduced taxes for the wealthy and paid for the war with deficit spending.

3. The rich will be called upon to sacrifice. Obama should highlight that he is asking those who make over $250,000 a year to pay more in taxes. They can afford it, and should be contributing more to the common good, especially in hard times. If the tax burden paid by the wealthy during the Reagan years can be restored, that will go a long way toward paying for the war on terror, the Wall Street bailout, the cost of taking care of our veterans, health care and educational reform, and the cost of new green technology.

4. We all will need to keep supporting our government with our taxes. Bill Clinton, when he was running for president in 1992, promised middle-class tax relief. He couldn’t deliver, because economic realities required him to reduce the federal deficit. After Obama proposed a tax reduction for 95% of households, the government committed us to a $700 billion expenditure to rescue the financial system. Hello? It should surprise no one if Obama’s middle-class tax cut were to be reduced or delayed.

5. Delaying retirement. All signs point to the fact that my generation, born after 1945, will have to keep working longer and retire later, due to the drop in value of our 401(k) and other retirement plans. There are too many of us to stop being productive and live off of Social Security, diminishing home equity and investments. Things will get worse before they get better, and it may take another 10 years for the country to pull out of this financial crisis.

6. No more easy money. Wealth did not trickle down during the years of Republican administration, but lots of credit did—subprime mortgages, credit cards, companies issuing junk bonds, states and counties borrowing, bizarre unregulated derivatives and hedge funds. A house of cards, collapsing on us now. We will have to spend less and save more, and the financial self-discipline will be a painful adjustment.

7. Yes, there will be more government regulation. Isn’t that the lesson of the financial meltdown? There won’t be as many ways to get rich quick on Wall Street. If Obama is elected, unions may have more rights to organize, companies may be forced to pay women equally, fuel efficiency standards for automobiles may be raised. Maybe even price controls on prescription drugs. The business world will be called upon to sacrifice for the common good. About time.

8. Social Security and Medicare reforms. Of course, the rich should pay a greater share of the payroll taxes. As Obama has proposed, those making over $250,000, who don’t pay a dime more right now, can afford it. That’s progressive taxation, long overdue. If that were done as a first step, then it might be reasonable to ask others to sacrifice by making other small adjustments, to the eligible retirement age, for example.

9. Civil preparedness. After September 11th, the most visible change in our daily lives was the increase in airport security measures. In the seven years since then, many other steps that could protect us have been neglected. A suitcase nuclear device could be driven or walked into almost any office building in America. As a society, we don’t practice emergency procedures for earthquakes, floods, fires, or terrorist attacks. And at no level of government do we have well-organized, practical ways to enlist ordinary citizens in rescue, recovery, and cleanup operations. A flotilla of small boats could have saved many lives in Louisiana during Hurricane Katrina, but we just left those poor people on their rooftops.

10. The Ugly American, revisited. In 1960, John F. Kennedy inspired a new generation of Americans to care about our relationship with the rest of the world by joining the Peace Corps. He spoke German in Berlin and Jackie spoke French in Paris. Senator Obama wants to double the Peace Corps and has lamented Americans’ lack of fluency in foreign languages. Recently, a group of former Secretaries of State convened and agreed that our most serious international problem is the low level of respect for America in the rest of the world. We could set aside a bit of our arrogance about being “the best country in the world,” take the time and trouble to understand other people’s cultures, religions, and problem, and win back our allies and friends.

Our presidential candidates have sought to win this election by telling their personal stories, by trying to relate to the average person’s needs, by attacking the failures and lies of their adversaries, by mobilizing thousands of grassroots supporters, and by offering new policies and benefits. They have tried to outdo each other with the promise of better government service at no additional cost.

When JFK, in his inaugural speech, said “ask not what your country can do for you, ask what you can do for your country,” he prepared an entire nation, the G.I. Generation and the Baby Boomers alike, to do amazing things for the benefit of all humanity, from sending a man to the moon to overcoming racial inequalities at home.

There is no other appeal to the voter that is more powerful, more courageous, more uplifting, than the bare-headed image of an American president who is able, by his or her own example, to inspire sacrifices for the common good.