Reasoning behind CFR28's Proposed Constitutional Amendment for Campaign Finance Reform

No constitutional amendment can achieve the required super-majority threshold if it is not sound. This means it must explicitly protect free speech and requires more thought and detail than what has been offered in the expansive amendments offered so far. 

 

To achieve this, the proposal offered here approaches campaign finance reform as a logic puzzle. The logic premises (bulleted items) and conclusions are provided below. Note that there are some supporting arguments for the second premise on the notes page.

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  • In the Citizens United case, the Supreme Court said that the money anyone spends to express opinions about candidates is protected free speech.

  • None of the current proposed changes to federal law that the Supreme Court might accept will effectively reduce the influence of this money. These include; a) limits on campaign contributions directly to candidates, b) public financing, and c) broadened transparency. (see notes page)
  • Any change in federal law (rather than the Constitution) will be subject to special influence during passage or in future legislation thus leading to compromises that will undermine reform.

 

Therefore, a constitutional amendment is required to address the Supreme Court’s decision.

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  • It is not always possible to distinguish between:
    • Political commentary or electioneering,
    • Objective news or news with bias,
    • Inadvertent bias or purposeful bias,
    • Informative analysis or selectively informing,
    • Parody just for laughs or parody to make a point,
  • ...and it should not matter in campaign finance reform.

 

Therefore, the amendment cannot require anyone to make these judgments.

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  • No one should be able to pick who can shape voter opinions.
  • No citizen should be prevented from hearing any message they want to hear about candidates.
  • Any media format, likes books, newspapers, TV and radio shows, etc. can be used for any purpose, including electioneering.

 

Therefore, the amendment has to allow anyone to produce any message, using any media and present it to interested audiences.

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  • But reform has to be effective at reducing the power of money in politics.
  • Payments for advertising are the most effective use of money by independent Political Actions Committees (PACs).

 

Therefore, the amendment must restrict advertising by independent PACs.

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  • As established in premises above, the following cannot be the basis for determining if something is an advertisement: 
    • Message content and sponsor intent.
    • The identity of the sponsor.
    • Media format.

 

Therefore, the amendment has to define advertising in terms of its audience: an advertisement is a message directed at an audience that is assembled for reasons unrelated to hearing the sponsor’s message. If an audience knowingly and purposefully seeks the message, the message is not an advertisement.

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  • Direct contributions to candidates must be limited to be within reach of the average voter so they will become more like a vote than a luxury purchase.
  • Limits have to adjust with general wealth and inflation.

 

Therefore, the amendment must set direct contribution limits at a very small percentage of the average income of Americans.

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  • Relief must be available for candidates if limited contributions are not enough to fund campaigns.

 

Therefore, the option for policy makers to provide public campaign financing must be included in such an amendment.

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  • Loopholes and undermining of these reforms must be prevented.

 

Therefore, the amendment must include several administrative provisions to close these gaps.

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A review of the proposal text and breakdown will show how the proposal satisfies the above reasoning.

Amendment XXVIII.pdf
Adobe Acrobat document [200.1 KB]
CFR Illustration.pdf
Adobe Acrobat document [53.1 KB]

Please send your comments to comments@cfr28.org

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© CFR Amendment 28, 2013