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Sometimes the Constitution Needs Some Detail

When most Americans think about constitutional amendments, the first ten often come to mind.  Known as the Bill of Rights, they are designed to guarantee freedoms and justice for every American. But these amendments tell us little about how to ensure those rights, rather they are blanket statements that leave it to lawmakers to enact specific protections. The First Amendment for example is just one sentence that establishes five such rights.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

 For the founders, this was an elegant and uncompromising commitment to our fundamental natural rights that has become a blueprint of freedom throughout the world.

But not all amendments could be written that way. For example, the Seventeenth establishing that citizens elect senators, and five amendments addressing presidential tenure, election and succession (the 12th, 20th, 22nd, 23rdand 25th) are technical in nature.  None of them establish fundamental rights, but instead prescribe the structure and processes of governing. Likewise, all the original Articles of the Constitution do little more than define the three branches of government, their powers and how they operate.

While most of the Constitution is more mundane than the bold declarations in the Bill of Rights, they are no less important because they give us checks and balances, limits of power and basic fairness in our governing systems.

CFR28 is such an amendment.  While its goal is to protect egalitarian democracy, merely stating that principle would be little more than wishful thinking. That goal requires amending the Constitution with some detail on HOW we will check the influence of money in politics.  Without specifics, the amendment will be riddled with loopholes, surrender our rights to free expression or both. One proposed campaign finance reform amendment that demonstrates such shortcomings is Senate Joint Resolution 8 introduced in January 2017:

 JOINT RESOLUTION: S. J. RES. 8

 Proposing an amendment to the Constitution of the United States relating to contributions and expenditures intended to affect elections.

 Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

 Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

 Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.”

Few times in American history has it been more glaringly obvious than today that Congress should never be entrusted with this kind of power to regulate political speech. Senator Ted Cruz easily disassembled a similar proposal in 2014 by pointing out that Congress could pass laws to jail the producers of media like Saturday Night Live because the amendment empowered Congress to “...regulate…spending of money…to influence elections”. While SJR 8’s third section implies some protection for the “press”, comedians are not part of the press.

Or are they? If the Supreme Court were to broaden the definition of the “press” to include entertainment, then virtually anyone can assert press credentials, especially groups like Citizens United claiming to “compete” with mainstream news.

Protecting the press was the primary concern addressed in the Citizens United decision; the Supreme Court barred the government from choosing who can spend money to give us information about candidates. An amendment that must reassert press protection in the third section because the first two endanger press freedom leaves us exactly where we are today, but with the new risk of criminalizing other political speech.

Offering a solution to campaign finance reform in three lofty sentences like SJR 8 is a feeble romantic notion.  Campaign finance reform must make a practical distinction between the press and paid electioneering rather than merely claim not to “abridge the freedom of the press”. This difficult problem has a narrow solution provided in CFR28 by DEFINING and restricting independent campaign advertising.

Separating powers between the three branches, naming and limiting those powers, setting rules for elections, etc. are all tedious and sometimes prescriptive Constitutional details. Yet they are critical to the integrity of our Republic and protecting our freedom. Shouldn’t we include some detail about how we will protect the Republic from special influence and verify that voters matter more than money?

Michael J. Kyvik

Anthony Hartman