usa-flag

Amendment Analysis

The For Our Freedom Amendment has three sections. Section One is the normative core of the amendment, Section Two corrects prior misreadings of the Constitution, and Section Three empowers Congress and the States to implement the amendment. We discuss each section in detail below.

Section One

The text in this section is doing several things. Like the Preamble to the Constitution, Section One adopts the first person plural point of view and proclaims “We the People” as the authors of what follows. This grammatical choice reflects a substantive commitment to the principle of popular sovereignty — the idea, as James Madison put it, that “the people are the only legitimate fountain of power.” This section thus embraces popular sovereignty as a fundamental legitimating source of legal authority in our nation.  And by using the present tense (“We the People have compelling sovereign interests…”), Section One affirms the notion that every American generation has an active and renewing interest in popular sovereignty — not just the generation that ratifies this amendment.

Next, Section One identifies four “compelling sovereign interests.” The four interests are labeled “compelling” to signal that they are of high significance and should be accorded due weight in constitutional analysis. They are labeled “sovereign” in a possessive sense: to indicate that the interests belong to the people themselves, not to any particular governmental entity. The four interests are also “sovereign” in a descriptive sense because they actually enable the people’s capacity to exercise popular sovereignty.

The goal of the amendment as a whole is to generate legitimacy in our political system by strengthening the alignment between the popular sovereign (“We the People”) and our government. Section One therefore recognizes our compelling sovereign interests in four particular structural devices.

“representative self-government”

The first structural device is representative self-government. Americans have a compelling sovereign interest in representative self-government because it is the primary structural device for generating alignment between politicians and the people. To ensure that our government derives its “just Powers from the Consent of the Governed,” we have a compelling sovereign interest in producing political institutions that are actually representative.

Key concepts related to the structural device of representative self-government include:

  • officeholders’ connection to constituents and responsiveness to public opinion
  • accountability to the people (e.g., through regular elections)
  • formation and transmission of public opinion through freedoms of attention, speech, expression, and association
  • use of anti-fraud and anti-corruption measures to increase alignment between representatives and their constituents
  • protection against foreign interference in the processes and institutions of self-government

“federalism”

The second compelling sovereign interest is federalism. Federalism is a structural device that helps to implement popular sovereignty and self-government in a large, diverse nation. Federalism gives space for varying sociocultural norms to be embodied in law in differing ways throughout our country. It is a short-hand way of invoking the potential virtues of decentralization, localism, and subsidiarity — i.e., the possibility that social problems may be better addressed at the most local level that can feasibly and justly resolve them. In a vast, diverse democracy where value pluralism is a fact of American life, the structural device of federalism serves as a localizing tug that gives more meaningful voice to Americans than would be possible in a highly centralized political system. By invoking federalism, Section One is also pragmatic about the forces that give rise to sociological legitimacy in a large political system. If a major purpose of the Constitution is to create a durable framework for large-scale social cooperation, the norms and values that enable such cooperation will have to be experienced and rooted at a local level in order to operate effectively at a national level.

Key concepts related to the structural device of federalism include:

  • different levels and institutions of government have differing proximity and responsiveness to the people they serve
  • devolution of social and political decision making to more local levels may be more inclusive, generate more participation, and strengthen our sense of voice and community
  • principles of decentralization and localism may enhance the sociocultural legitimacy of resulting laws and policies
  • moral and social norms are more readily forged, experienced, and experimented with at smaller scales of society

“the integrity of the electoral process”

The third compelling sovereign interest is the integrity of the electoral process. Electoral integrity is the primary structural device that generates and maintains trust in the device of representative self-government. Key concepts related to electoral integrity include:

  • foreign jurisdictions cannot not determine or interfere with the outcome of another jurisdiction’s elections
  • registration and voting are accessible and fair for all eligible participants
  • elections are plausibly competitive
  • registration, voting, and tabulation processes are trustworthy and secure
  • the informational environment is robust and healthy such that the public opinion in a given jurisdiction is plausibly reflected by electoral outcomes in that jurisdiction

“the political equality of natural persons”

The final compelling sovereign interest is the political equality of natural persons. Political equality is the primary structural device that places individuals on equal footing as members of the body politic. By invoking “political equality,” the amendment frames a goal to be continuously pursued through adjustments to old procedures and experiments with new ones. Substantively, the notion of political equality expresses our American commitment to the self-evident equal dignity of human beings. Procedurally, the pursuit of political equality orients our institutions toward processes that give individuals increasingly equal abilities to shape and influence political decisions. Political equality also carries with it an aim of impartiality – the principle that the government should take cognizance of the interests of all persons, not just certain majorities or factions.

Section Two

The primary function of Section Two is to correct persistent misreadings of the Constitution by the Supreme Court that originate in its 1976 decision in Buckley v. Valeo. In Buckley, the Court invalidated several campaign finance regulations that were partly designed to limit the political spending of the nation’s wealthiest members so that everyday citizens could participate more meaningfully. The Court — viewing political spending as tantamount to “speech” — announced a principle that has shaped campaign finance jurisprudence ever since: “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment[.]” The For Our Freedom Amendment fundamentally rejects the idea that the pursuit of more equal influence of all Americans over our political processes is at odds with our interests in freedom of speech and expression.

Buckley ushered in the modern era of judicialized campaign finance in which the Supreme Court calls the shots. [Eventually we should link here to the “Who Should Decide” issue bulletin.] Instead of trusting the American people (acting through our state and federal legislators or ballot initiatives) to devise reasonable campaign finance rules, the Court has interpreted the Constitution in a way that makes itself the ultimate arbiter of such rules.

Section Two would undo the Supreme Court’s mistake of cramming campaign finance regulations into ill-fitting and exclusive First Amendment doctrinal boxes. The proposed amendment would replace the prevailing framework (which gives courts tremendous power relative to the American people and our legislators) with a mode of analysis based on reasonableness/proportionality, and which considers how our compelling sovereign interests are (or are not) served by a given regulation.

The overall goal is to give much greater leeway to the American people to decide how to structure the rules of campaign finance. And while this amendment does not discount the relevant and compelling interests that are protected by the First Amendment, it makes clear that courts should give greater deference to legislative and popular determinations of campaign finance regulations. In particular, Section Two’s use of the word “reasonably” is meant to shift the legal analysis out of a mode defined by rigid tiers of scrutiny and into a mode of interest balancing and proportionality. Additionally, the use of the word “in” (“contributions and spending in campaigns, elections, or ballot measures”) creates a nexus component: campaign finance regulations will have to be sufficiently related to campaigns, elections, or ballot measures.

The American people are overwhelmingly dissatisfied with our current campaign finance laws. (E.g., Per this Gallup report, out of a list of 22 policy areas, “the public is least satisfied with the nation’s campaign finance laws.”) Upon ratification of the For Our Freedom Amendment, the text of Section Two would require a fresh look at Buckley and the line of cases it spawned, including:

  • First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), holding that corporations have a First Amendment right to spend money to publicize opposition to a ballot initiative.
  • Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), holding that corporations have a First Amendment right to make unlimited independent expenditures in elections.
  • Speechnow.org v. FEC, 599 F.3d 686, (D.C. Cir. 2010), giving rise to “super PACS” by holding that individuals have a First Amendment right to make unlimited contributions to independent political action committees.
  • Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011), invalidating Arizona’s public financing scheme in which candidates received supplemental funds based on an opponent’s spending.
  • American Tradition Partnership v. Bullock, 567 U.S. 516 (2012) (per curiam), announcing that the holding of Citizens United also applies to state campaign finance laws.
  • McCutcheon v. Federal Election Commission, 572 U.S. 185 (2014), holding that aggregate limits applicable to individuals’ political contributions are unconstitutional.

To be clear, the proposed amendment does not prescribe particular policy answers to any of the questions involved in the above-referenced cases. The issues involved in campaign finance are important and complex, they implicate compelling and competing interests, and reasonable minds can differ about the best approaches to the problems that arise. What this amendment does is recognize that campaign finance regulations are better addressed legislatively by the American people and our representatives, rather than judicially through the imposition of rigid rules that stifle experimentation and learning.

Section Three

Finally, Section Three gives Congress and the States a general power to implement and enforce the amendment as a whole. It also specifically empowers Congress and the States to distinguish between natural persons (i.e., human beings) and artificial entities when they pursue various sovereignty-affirming measures, both in the campaign finance domain and in other sovereignty-implicating domains. Besides campaign finance, some of the other domains that implicate our compelling sovereign interests include elections and voting, political parties, apportionment and districting, and lobbying.

In addition, Section Three clarifies that the power to distinguish between human beings and artificial entities includes the ability to prohibit artificial entities from raising and spending money in campaigns, elections, or ballot measures. Of course, that prohibitory power is still subject to the normal interest-balancing that attends the legislative process, as well as the principles set forth in the first two Sections of the amendment, including Section Two’s reasonableness requirement.