The Emperor Has No Clothes
Note: There are some well-meant but ineffective or unenforceable proposed solutions out there. Some are worse than others. And some proposed solutions aren't. One really disturbing resolution was clearing the Congressional levels at an alarming pace. After the following comparison was sent out on April 16th and you responded to Congress, every single variation of the dangerous resolution was withdrawn. The number cited was even reissued to a different bill, which is seldom done. Congratulations! When the public speaks Congress does respond.
Addendum 11/15/15: Fascinating to Capitol-watchers, as soon as public input stopped Congress reversed course, reinstating variations of the resolution. The replacement assigned to House Joint Resolution 38 has been withdrawn and the number reassigned (that's twice in one session!) to the 13th Congress' original version. It doesn't contain the 14th Congress' added section on the First Amendment, but that section has been reworded and reintroduced as a separate resolution (SJR 5), being promoted as companion legislation to HJR 38. This dangerous bill is live again. Tell your Senators and Representatives to withdraw it again - but this time permanently! Further contortions may yet follow.
The only 'campaign finance' reform Amendment numerous members support has more serious problems. It may have been introduced symbolically, to increase public awareness.
Its only guidance clause, "To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes", never connects to any means of verifying or enforcing results.
It grants Congress (and state governments, in state elections) this:"Congress [or the States] shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on--(1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates."
It then specifies that it does not grant the power to limit freedom of the press. That's it.
That would give Congress power without increasing the public’s power over them, or over their use of it. It doesn’t add accountability. It doesn’t require transparency, uniformity, or a maximum amount, or prohibit tax deduction. Congress would first choose who would be allowed to donate and how much, enabling cronyism. After pooling funds, they would decide which groups, individuals or candidates could spend the donated money and how much, giving them power over funding for candidates of all parties, even parties with no members in Congress at the time. Fairly contested elections would be impossible. And since it doesn't prohibit privatizing the function, parties or cronies could take it over.
Besides adding power with no concrete parameter, regulation, or accountability, it would have no effect on invasive marketing-based campaign tactics, excess duration of campaigns, fraud, unequal funding, absence of unfunded information, corporate donations as tax shelters, or involvement by foreign entities or governments. All of these issues arise wholly or partly from private funding of the public debate and since it would retain private funding, large donors would ultimately retain control. It couldn't limit private funding to zero because it offers no alternative. Another Amendment would be needed then.
Nor does that proposed Amendment correct fraud in titling or describing Acts. Or districting problems like gerrymandering, or apportionment, or quorum appointments, or uncontested elections. Or voting rates, disenfranchisement, abridgment of the right to vote, inefficient or inadequate electoral process, coercion, or voter fraud. It wouldn't give us back the Preamble so we can fight effectively for our rights in court. It doesn't address invalid amendment or caselaw drift, which could invalidate such an Amendment as they can any other provision of the Constitution.
Bills have to be reintroduced when Congress starts a new term, and several versions of that one have been introduced in 2015. The worst (HJR. 38, which has cleared the House subcommittee) adds a devious clause excluding corporate political speech from Amendment I - while its own text makes corporate political speech a Constitutional right, granting the same protection as Amendment I.
Compare this one. This is what public control of the public debate looks like.
This Amendment achieves a more surely representative government, more accountable and so stronger against corruption and error. By transparently regulating all parameters of the provision of self-governance information, penalizing fraud, sizing the House for effective representation and reforming districting, while raising the popular vote to at least 95%, adding an abstention option, requiring fair contest in elections, and providing for the government to protect the ballot and the Constitution, we vastly increase the public's control of Congress and give Congress in turn greater control when parties, wealthy individuals, corporations, other governments, and special interest groups try to exert an unreasonable amount of influence; and keeping specific public functions free of privatization preserves accountability to the voters.
This Amendment helps us protect our government and protect ourselves from sacrifice of our inalienable rights.
Tax Rebates/Credits or Campaign Vouchers
These dangerous false reforms turn up under various seductive names.Don't be fooled!
What are tax credits, or campaign vouchers, or tax rebates?
By any name, they wouldn't be a gift.
Public funding by budget item gives the public power
over the campaign system.
Tax credits/rebates/campaign vouchers
wouldn't empower the public to control the process.
Vouchers or rebates, on the other hand, don't end private funding, they just supplement it.
Just like other partially-public, partially-private campaign funding, we'd still have all the problems of wholly private funding. Tax rebates don't increase the public's ability to prevent private control of political outcomes by a small group of wealthy people. We'd have no more power than we have now over exemptions, dark money, or special-interest spending. Nor would we have power to stop the spiraling costs of campaigns. Rebates don't give the public any power to impose honesty in political ads. We'd have no more power than we have now over when, where or how often we'd be subjected to ads, robocalls or any other intrusive campaign tactics.
Fairness isn't improved by this method, either:
incumbents and "name-recognition candidates" would still get more funding. Mandatory donations could even worsen these unfair advantages.
they wouldn't empower the public to regulate campaign spending or standards.
Public funding by budget item encourages public involvement.
Tax credits/campaign vouchers/rebates
would support cronyism.
Campaign vouchers, on the other hand, would support the existing campaign industry, none of whom is accountable to the public. You'd have no choice but to give your rebate voucher to someone on a list kept by your state or locality. When owned by cronies of your legislators you'd be forced to support their cronies.
And since the rebate system would encourage lobbying by vendors in the campaign industry for a spot on the list, they would increasingly be cronies.
Budget-item funding imposes legal requirements
that no other method does. And amending the Constitution is the safest way to impose permanent government reform.
Tax rebates have no legal requirements at all - any attached reforms could be taken away by the courts or Congress.
This amendment already includes the public oversight we'll need for this and other corruption reforms, fully legally supported. Neither Congress nor the courts can take it away.
Any tax credit/campaign voucher/rebate system
would make corruption worse.
Campaign vouchers would make all the current problems of campaign funding far worse.
If someone asks you to support vouchers, ask whether they have any ties to organizations or companies that might stand to gain. They should disclose these up front.
But don't support this false reform.
It's not worth it.
Myth #1. We need a Constitutional Convention on the political process.
The Convention method takes all power over the nature of our government and laws away from the people, the legislatures, the courts and the ordinary Article V process and gives it to the delegates. It’s only worth risking when the country is about to collapse, requiring immediate and total overhaul. It would be drastic overkill now.
See The Con-Con Con and Valid Amendment for more.
Myth #2. Transparency would be enough campaign-finance reform.
Most funding comes from large donors. Transparency doesn’t really bother them because it's assumed that all large organizations and corporations donate heavily. They may not want people to know how much they spend, but the thought wouldn’t deter them. Transparency matters, but it’s not enough.
See Section 1, especially Transparency, for more.
Myth #3. Campaign vouchers/tax credits/rebates would be a worthwhile campaign finance reform.
By any name tax credits/campaign vouchers/rebates, wouldn’t be a gift.
A rebate is money paid then refunded. Your state or locality would first add your voucher or rebate to your taxes by taking that amount from other programs and putting it in the rebate program in case you take it. Because you must first pay for your own rebate or voucher whether you then take it or not, the government would in effect require you to buy a $50 or $100 voucher that could only be spent supporting a candidate, a political party, or a vendor in the campaign industry. Those who chose not to would be out that $50 or $100 (in addition to the program costs).
Vouchers or rebates wouldn't empower the public to regulate campaign spending or ethical standards by candidates, parties, or the private campaign industry. Public payment for campaign speech is ONLY worth the cost if the program imposes all the conditions this Amendment imposes.
In fact, cronyism between the campaign industry and government would become worse, because government would keep a list of approved campaign-industry vendors for your vouchers. Lobbying for a place on the list would add to public corruption. You'd be forced to support legislators' cronies in the campaign industry. (By contrast, in a public finance system anyone could participate, with no list, no protectionism of the campaign industry and no cronies.)
This is discussed at greater length below in "Tax Credits/Rebates or Campaign Vouchers".
Myth #4. Voluntary or partial public funding works.
Donation limits can be gotten around.
Voluntary public funding only really works if all candidates volunteer, which hasn’t happened yet.
Just limiting donations can increase the advantage for wealthy candidates, and can make the “name-recognition candidacy” problem worse. Ending them completely, coupled with a system regulating expenditures, doesn’t.
Matching funds doesn’t remove private funding. If any donations or private expenditures are permitted, the funding system has all or most of the problems of entirely private funding.
See Knowing What to Ask About Reforms for more.
Myth #5. We need an amendment to undo Citizens’ United and its fellows.
Corporate personhood was established in law by a clerical error that added unintended words to a Supreme Court decision (Santa Clara County v Southern Pacific Railroad Company, 118 US 394, (1886)). Congress can address it with two statutes.
The federal judiciary is governed by rules made or authorized by Congress, and can’t overrule them. A federal statute can prevent anything but judicially-intended, authorized text from affecting precedent, and void statutes relying on other text. A second statute can limit property to government-granted privileges representing commercial and not personhood interests, with clauses to prevent property from exercising any personhood rights granted elsewhere, to affirm that personhood is individual, and to void previous action (to keep corporations from being grandfathered in). Without the accidentally-created precedent, the Constitution gives no speech rights to property.
See How to End Corporate Personhood by Statute for more.
Myth #6. Local or state campaign-finance reforms are safe and effective.
When a legislature establishes a function by statute or ordinance, they have power to change its rules or repeal it. They can mollify the public for the moment then change it later. State laws are also subject to being changed or repealed by federal ones. Local laws can be changed or repealed by state or federal laws. Only the Constitution can establish public campaign funding beyond courts’ or legislatures’ ability to remove it. And states’ and municipalities’ public funding systems can’t make the kinds of change needed to protect elections. For example, only the Constitution can require candidates or spenders to meet ethical standards.
See Statute vs Constitutional Amendment and Sole Public Funding Enforces Campaign Ethics for more.
Myth #7. We can’t end privately-financed campaigns without violating freedom of speech.
Public campaign funding can work within the Constitution's allowed regulation of political speech. Several sections of the Constitution affect speech. For example, the Commerce Clause impacts commercial speech. Because Article I, Section 4’s Electoral clause addresses the time, place and manner of holding elections, Congress may reasonably limit political speech conduct by time, place or manner. This controls expenditures, and is the least-restrictive way to regulate political speech. No content is prohibited, all content is supported, but within dollar limits. The question isn't how much impact a message can possibly have but what information the public needs to form reasonably informed opinions. And Amendment I doesn’t assure any speech universal distribution.
See the Protecting Freedom of Speech pages for more.
Myth #8. We should let Congress decide how to reform campaign finance.
When Congress drafts campaign finance reform it’s always either ineffective or unenforceable in court because they were elected by private campaign finance. They won’t do better. They can’t. An amendment establishing funding, setting limits and expenditure controls has to be drafted outside of Congress. The Constitution can prohibit candidate involvement in funding, require contested elections, and so on.
See Free Congress - Be Congress! for more.
Myth #9. We have no way of determining what dollar limits to impose on public campaign funding.
Total public and private electoral spending has remained within a consistent range of gross domestic product by percentage, in any economy, between 1860 and 2012, averaging between 1/100 and 5/100 of one percent. Knowing this lets us control it in the budget safely, and this range is broad enough to flexibly accommodate other budgetary needs each year.
See Percentage of GDP for more.
Myth # 10. Real reform is unachievable.
How does reform happen when the process is damaged? Timing; public consensus on the need; a specific written program; an independent first move; using win-win power; bypassing obstacles when possible; nonviolent forms of protest and public pressure; and the opportunity to elect lawmakers. It’s hard work, but we have everything we need right now. And repairing our ability to hold government accountable using the political process will facilitate managing all other issues.
RepairRestoreSafeguard.org asks the American public to fix districting, elections, and campaign finance by bringing these functions together as a system for the first time, in a Constitutional amendment. Using today’s tools to transform the existing passage and ratification process, together we can make the actual systemic reforms needed, with little disruption. This is a practical, cost-effective blueprint for useful, genuine change the right way.
See the rest of this website for more.