[EL] Proposed Constitutional Amendments -- Larry Tribe and Rick Hasen

[Scarberry, Mark]

[I am separately sending a nearly identical version of this post to the conlawprof list as well. If you are a member of both lists, you will receive both. My apologies.]
I thought it would be worthwhile to note the specifics of these proposed constitutional amendments.

Prof. Tribe's proposal is intended to reverse Buckley, Citizens United, and Ariz. Free Enterprise v. Bennett, but would appear to grant the federal and state governments nearly unlimited authority over campaign speech (so long as the authority is exercised in a content-neutral way):
"I propose an ambitious amendment along the following lines:
"Nothing in this Constitution shall be construed to forbid Congress or the states from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures. Nor shall this Constitution prevent Congress or the states from enacting systems of public campaign financing, including those designed to restrict the influence of private wealth by offsetting campaign spending or independent expenditures with increased public funding."
http://hive.slate.com/hive/how-can-we-fix-constitution/article/the-once-and-for-all-solution-to-our-campaign-finance-problems.
It seems that the first sentence would authorize limitations on contributions and independent expenditures, without any floor at all. Arguably, Congress or a state legislature could completely prohibit contributions and independent expenditures. Even if "limit" is not interpreted to include "prohibit," the amendment would allow contributions and independent expenditures to be limited to small amounts, presumably such small amounts that no effective mass communication of a message would be possible.
Prof. Tribe does say "some financial investment is essential for almost all forms of speech, and I am not prepared to abandon all First Amendment scrutiny of regulations imposed on financial backing of political expression. What's crucial is that regulations treat content neutrally, regardless of whether they address speech itself or the funding of speech, and regardless of the speakers at which they aim." I don't see how a requirement of content neutrality provides any protection of the right to make "some financial investment" in order to communicate a message. I would also think that laws targeting campaign speech would by their nature fail to be content neutral; I suppose what is meant is that they should be "candidate neutral." (It also is less than clear how news media and book publishers would be dealt with under this proposal, to the extent that their communications endorse, praise, or criticize a candidate.)

At the same time, the proposed amendment would not seem to cut back on the current right of *candidates* to spend unlimited amounts of their own funds. I don't see how spending by a candidate can be said to be an "independent ... expenditure." The second sentence of the proposed amendment would allow the federal or state governments to provide extra funding to candidates who face wealthy self-funded candidates, but it certainly would not require such funding. By providing a supposed antidote to such self-funding, the second sentence suggests that the wealthy will be able to self-fund their campaigns.
Perhaps there needs to be a very strong emphasis on Prof. Tribe's phrase, "along the following lines."

Rick's proposed amendment (copied below), deals with the problems of partisan election administration. It is certainly more defensible than Larry's, though list members have pointed out various problems with it. I wonder, though, whether it would constitutionalize the current practice of states awarding electoral votes by popular vote, or give the commission the power to do so? After all, it provides for the commission to establish "the place and manner of holding elections for president." Perhaps the amendment thus implicitly includes a requirement that there be such elections in each state or gives the commissioners power so to require. (I wouldn't have a problem with an amendment requiring states to choose electors by popular vote, but it ought to be explicit in the text of the amendment if it is intended.) And how much power would the commissioners have? Would the commission be authorized to mandate that presidential electors be by chosen by district or perhaps allocated proportionately? Does the third sentence limit the scope of the first?

Finally, does the combination of "10-year terms" with their holding of office "during good behavior" implicitly reject the idea that "during good behavior" is a way of describing life tenure in an office, subject to removal only by impeachment?
Here is Rick's proposed amendment (http://hive.slate.com/hive/how-can-we-fix-constitution/article/end-the-voting-wars):
"Article 1, Section 4 should be amended to read:
"The time, place, and manner of holding elections for senator and representative, and the place and manner of holding elections for president, shall be established by the U.S. Elections Commission. The commission shall receive adequate funding from Congress. It shall establish rules and regulations for uniform national elections consistent with the goal of ensuring that all eligible voters, and only eligible voters, shall be entitled to cast a vote which shall be accurately counted. The (three) commissioners shall be nominated by the president for 10-year terms, subject to confirmation by a three-quarters vote of the United States Senate. Commissioners shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
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