by Jerome Armstrong, Tue Mar 16, 2010 at 04:39:50 PM EDT
It's very interesting whatching Lawrence Lessig develop a impetus for a constitutional amendment to deal with the obvious shortcomings of the Supreme Court's Citizens United ruling. Here's his recent thinking:
Corporations aren't people" has become the rallying cry for many opponents of the Supreme Court's Citizens United ruling.Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.
The problem is, the decision does not actually assert that corporations are persons. Instead, the Court notes that the First Amendment focuses on "'speech,' not speakers." That is, that the government is constrained in regulating any campaign speech, whether by a citizen, a corporation, or a foreign national.
One need not be xenophobic to be troubled by the idea of foreign influence in American elections. Selecting our leaders is a private decision to be made by us as citizens, and it is perfectly appropriate to limit the disproportionate influence of non-citizens in this process.
To remedy this problem, my proposed constitutional amendment is simple:
Such an amendment would give Congress the power to limit campaign expenditures by non-citizens -- including both corporations and foreigners -- during a narrow window when Americans are focused on the question of whom to elect to represent and lead them.
One need not be xenophobic to be troubled by the idea of foreign influence in American elections. Certainly the Framers were. The point is not that foreigners are evil. It is rather that elections are private. It is we—citizens—who are to select who is to govern us. And it is completely appropriate for us to protect the debate we have about that selection by limiting disproportionate spending by non-citizens.
This insight gives a clue to perhaps the most sensible constitutional response to the Supreme Court’s decision. Not, as an angry gaggle of activists have proposed, through an amendment aimed at denying what Citizens United never asserted—that corporations are persons. But instead, through an amendment that recognizes what no one has ever asserted—that whether or not they are persons, corporations are not United States citizens. And if there is something appropriate to keeping the conversation about who is to govern us to us citizens, there may well be something appropriate in protecting elections against undue influence by non-citizens.
I can certainly get behind the gist of this amendment, and believe it has a really great chance of happening. But I don't agree with Lessig's argument of maintaining a "last 60 days before the election" clause.
First, the whole "last 60 days" framework is from a pre-internet mindset that believed only post Labor Day did campaigning happen (McCain-Feingold CFR was passed in 2002 just as the netroots was beginning to revolutionize politics). That world doesn't exist any longer. Second, there's really not any reason at all to allow for anyone besides a citizen to make political expenditures at any time.