Why Amend the Constitution?
So given that the Supreme Court struck-down the Bipartisan Campaign Reform Act (“McCain/Feingold”) in the Citizens United case because it hindered free speech and CFR28 protects free speech, can’t we simply propose CFR28 as a federal statute rather than amend the Constitution?
There are five reasons the answer is “no”, CFR28 must become a constitutional amendment.
1) The Supreme Court's Citizens United decision simply did not open the door to any solution other than to say that the speech of competing wealthy campaign donors will create balance by offsetting each other. Their reasoning was something like; if more speech is good for a democracy, and campaign money is speech, more money in campaigns is good.
2) It’s possible that that the Supreme Court would consider CFR28 a novel approach that changes their minds, but that’s a role-of-the-dice at best. As the Supreme Court becomes more conservative, these odds are reduced to zero.
3) But the Supreme Court was definitive about upholding the right of rich candidates to fund their own campaigns in Buckley vs. Valeo no matter what any federal law says. So if we were successful in restricting middle class candidates from raising money by passing statutes like CFR28, rich candidates would have an enormous advantage and therefore, the U.S. would perhaps become an official oligarchy. Sharks will swim among minnows.
The last section of CFR28 that shuts that door on rich candidates funding themselves has to be in the Constitution (with the other provisions) to eliminate their advantage.
4) In the narrow path between ensuring free speech and restricting use of money to fund electioneering speech, a few words matter a lot. Some of the words in CFR28 can be changed without compromising the integrity of the entire effort, but special interests won’t focus on those words. They will reign-down enormous pressure on what matters most. With fabricated innocence they will call for changes to one word here or there that will seem inconsequential to the general public, but devastating to reform.
And if they can’t get that change right away, they will wait until the rest of us are thinking about something else.
This is why the Bill of Rights was written. There were many founders who had to be assured that the Constitution would provide permanent and unmitigated protections of free speech, religion, press, etc. before they would agree to unite with other states. If those things were protected by a mere majority vote, how many times would we have lost those freedoms given all the trials and temptations of history?
With so many special interests perpetually seeking advantage, we must make reform permanent. Amending the Constitution is hard, and that is why we should do it.
5) Finally, amending the Constitution is a rally of the people. Those in power will not give us this change so there is no point in asking, we need to demand it. Americans must come together to do one thing (that is not war), not because we common-folk who are progressives and conservatives need a shared cause (and we surely do), but because this generation needs to add one idea, with one understanding of it purpose to the Constitution, to make it better, so we can restate ownership over that document and this country, for ourselves and the generations who follow.
Michael J. Kyvik