Knowing What to Ask About Reforms
In the wake of Citizens United and related rulings and statutes, a bewildering number of solutions have been proposed to reform some aspect of political process, including amendments. What makes this one so special? How can you be sure? Test it - and the alternatives - yourself.
First: Is it a reform measure at all?
Basic standards for any reform have been articulated by former US Attorney Preet Bharara (see For the Press for cite): it must be verifiable, enforceable, and lasting.
Verifiable: Does it state or imply how it will be performed and tested? Can it be tested before, during and after it's in use? Can we troubleshoot problems? Can we vote on its design? Who is accountable, and to whom, for what functions? Does it complicate the process of asserting rights? Is any part of it secret? Does any part of it demand nondisclosure by members of the public?
Enforceable: Does it consist with related requirements? What - and whose - rights and powers are affected and how will a question of abuse be raised? What is the grievance process? Is it reasonable? Does it enable "burying" grievances? Is face-to-face contact an option? Does it lengthen or needlessly complicate the grievance process? Is there any self-policing (including colleagues)? Are its designers accountable for design in ways more immediate and specific than electability? Does it privatize any power? What remedies are available?
- In court: Is it constitutional? How can it prevent the use of loopholes? Are rights, powers and duties stated, or a principle that will keep them clear?
- In legislatures: How can it prevent corrupt repeal? How can it be amended without being undermined?
- In enactment and enforcement: Is it too broad to test and enforce? How can it override patronage, personal advantage or partisanship? Does it reduce the public's power?
Lasting: Is its authority high enough to support it against corruption? Are checks and balances stated or implied by means subject to legal and textual analysis (structure, placement, terminology, etc)? Is it too topical or narrow for long-term use?
Second: Is it worth doing as a political process reform?
Political scientists have come up with several sets of criteria for gauging the value of campaign finance and electoral reforms, the bulk of this amendment. As you read through the sections of this proposal, refer back to the following list, adapted from "Going Public" by David Donnelly, Janice Fine and Ellen S. Miller, The Day After Reform by Michael Malbin and Advocacy Groups by Lisa Young and Joanna Everitt (see For the Press for citations; also see Considering Size and Scope, What This Amendment Is…and Isn’t, Statute vs Constitutional Amendment, Knowing What to Ask about Reforms, Level Two).
- Does it increase public engagement? Will it increase public participation? Will elections and legislative debate become broader forums for public discourse?
- Does it improve government accountability? Does it require transparency? Does it enforce integrity? Will it reduce conflicts of interest? Will it benefit public trust in the system?
- Does it enhance competition for offices? Is the diversity of candidates, especially economically, expanded? Does it increase equity among participants?
- Does it provide government officers more time for governing with less time spent fundraising?
- Is the fairness and equality of representation improved?
This amendment addresses the real process questions underlying topical issues.
Learn the difference and you’ll never be fooled.
Consider the Constitution.
- What does it already express about the political process? What can be logically implied by what it expresses?
- Where are the Constitution's gaps? Do any gaps serve a purpose?
- Which clauses are known to have been compromises, and with what? Do those needs still exist?
- What clauses would be affected by proposed provisions, with what consequences? What systems would be affected?
What's so special about this amendment? It amends an existing document, something most proposals seem to ignore. While often well-styled, they’re not often well-researched or well-considered for effectiveness as constitutional text.
Some amendment ideas in circulation can confuse people
that they manage things they don’t.
- “Corporations are not people”, for example, while important, wouldn’t affect speech rights, which the Supreme Court has ruled are protected regardless of the speaker’s identity, person or nonperson. It’s also a declaration of fact, like “Citizens are not subjects.” Declaration of fact isn’t a constitutional format, which organizes government operation or creates a legal framework (see How to End Corporate Personhood by Statute). Even “Neither states nor the United States will entitle corporations to rights as people” would then have to authorize either states or the federal government to grant them detailed privileges instead: if they can’t speak by right or privilege how can they advertise products?
- Just preventing corporate donations to campaigns leaves the issue of donations by wealthy, powerful individuals. People are clever.
- “Money is not speech” won’t work. Money is just a medium of exchange. The object of the exchange is what courts are interested in and when speech is the object it’s protected.
- Donation limits can be gotten around.
- Matching funds doesn't go far enough.
- Voluntary sole public funding only works if all candidates volunteer, which hasn’t happened yet.
- Giving all taxpayers vouchers or rebates for campaign spending is ridiculous, just adding new problems (see You Already Do).
- Giving Congress or state legislatures regulatory powers over campaign donations and expenditures without adding accountability is asking for trouble (see The Emperor Has No Clothes). This is too important to get wrong.
Public financing of campaigns,this amendment’s major addition, can be hard to take when corruption has a hold on government: paying for the political process may only seem to benefit the corrupt (that we pay for it one way or another is seldom mentioned).
- Partial or voluntary public financing is often promoted as easier to pass but while it creates a sense that “something is being done”, it has little if any effect on corruption at all. The only thing that can is shutting private money out of politics entirely while adding clear, permanent rules that make corruption more difficult and the public’s political oversight role stronger.
Step back and consider the whole picture.
Not everyone will be perfectly happy with everything included or left out (see The Term Limits Question and The Electoral College Question, neither affected). The point of our system of pluralism is not to achieve consensus (which is often impossible) but to achieve a system that works as well as we can make it within the parameters we ratified in the Constitution, starting with the Preamble.
- Does it work?
- Is it too much change? Too little?
- Are sacrifices and advantages spread fairly?
- Is it the product of trends or does it bring into play our basic principles of governance?
- Will immediate and long-term benefits justify change now?
- Is there a better alternative?
Images: George Hodan