Explanation of NMMOP’s 28th Amendment

The New Mexicans for Money Out of Politics’ 28th Amendment Language Subcommittee was charged with the assignment to present a draft of an amendment to reform the private finance of political campaigns and elections in this country that would a) best reflect the goals of NMMOP and b) be, in the Subcommittee’s view, the best and most complete expression of such an amendment. In taking on the project, the Subcommittee engaged in substantial research of 1) historical and current campaign finance legislation and regulation, 2) the important SCOTUS, appellate and lower court cases that have impacted how campaign finance is conducted in this country, 3) the various federal bills that were introduced in Congress over the last five years intended to address the problems with our current system of private campaign finance, and 4) several state and local memorials, initiatives and other expressions of support for a U.S. constitutional amendment to reform the current system of campaign finance.

After such review, the Subcommittee decided that the best expression to date of such an amendment that we in the Subcommittee had reviewed was the “We the People Amendment,” initially authored by the nonprofit group Move to Amend and introduced by U.S. House Representative Richard M. Nolan (D-MN) as H. J. Res. 48, one of eight such bills currently in the 115th Congress. As a result, the Subcommittee decided to start with the language of H. J. Res. 48 as the primary base document for its own expression. The Subcommittee felt that, as fine as that document is, it could be improved upon.

The Subcommittee struggled with the two conflicting goals of a) providing general guidance to the federal, state and local governments in crafting legislation, regulations and rules, and to the courts in reviewing and interpreting this article and legislation enacted and regulation and rules promulgated pursuant to it, and b) giving more specific direction to ensure greater effectiveness. Since Congress and state legislatures historically have shown a reluctance to regulate themselves, and did so primarily only following the public disclosure of election scandals, and, considering the current political climate in this country, the Subcommittee determined to try to strike a balance between those two goals, but to lean towards being more specific where we felt it was necessary in order to ensure that the intent of the amendment would be realized through legislation and in practice. We explain below how the Subcommittee’s proposed amendment language compares to and differs from that of H. J. Res. 48.

Section 1 is new and contains a statement of the purposes behind and supporting the specific requirements and proscriptions that follow. Most of the purposes were moved from Section 2 of H. J. Res. 48, but modified. The 28th Amendment Committee decide to move the statement of purposes to the beginning of the amendment to serve as a logical predicate for the rest of the provisions of the amendment.

Section 2 is almost identical to H. J. Res. 48. It refutes the “corporate personhood” doctrine and denies artificial entities constitutional rights. This was not the intent of the framers but constitutional freedoms and protections have been interpreted by the courts to apply to constitutions and other artificial entities, partly as a “short cut” method to provide legal foundation for what is intuitively just: that artificial entities such as corporations should be able to defend themselves in court and to protect their trade or business and their assets. Unfortunately, this “simple fix” has had great unintended consequences that ought to be reversed.

Section 3 is the invention of the Subcommittee. It precludes all artificial entities except registered political parties and registered, affiliated political committees from making contributions or incurring expenditures. It is the Subcommittee’s judgment that those particular entities must be excepted from the general ban against participation by artificial entities in the election process because they are historically part of the process, serve useful purposes and it would be difficult to replace their roles in the political process. The problem of independent political committees (including PACs and super-PACs) and other such organizations being able to spend unlimited sums of money derived from undisclosed contributions and expenditures (dark money) in the election process should be eliminated because a) only natural persons may contribute to candidates, political parties and affiliated political committees and those parties are the only ones permitted to solicit or receive contributions and the benefit of expenditures, b) each of them shall be subject to individual and aggregate limitations upon what they may receive, and c) pursuant to Section 5 of the proposed amendment, all such contributions must be reported and disclosed to the public.

Section 3 also provides for limitations upon the transfer of contributions and expenditures between and among political parties and political committees and from parties and committees to candidates. There are two reasons for this. Philosophically, such practice does not honor the intent of the donors and benefactors. Take, for example, a contribution made by a person to one politician or to a state party affiliate. Having his or her contribution go to finance a different candidate or party operations on a different level of government, or in an entirely different state, defeats the intention behind the donation. The second reason is that it would allow parties and committees to defeat the system of limitations that are set up at each level of government in each jurisdiction. The restrictions on transfer, however, still fall short because they do not eliminate earmarking and coordinated expenditures. To do so would require a level of detail that would be much better suited to legislation or administrative regulations or rules.

Please note that Section 3 is intended to exclude “issue organizations” that are purely and exclusively devoted to advocacy and efforts regarding ideological concerns and issues whose communications or actions do not reference or allude to in any way a political candidate or political party from campaign finance regulation. Organizations from Planned Parenthood to the National Rifle Association therefore would continue to have the unfettered, unregulated freedom to advocate their positions on the issues they are devoted to supporting or opposing, as long as they don’t intrude into the arena of campaign finance or the election process.

Section 4 is largely based on Section 2 of H. J. Res. 48, but the statements of purpose were moved to Section 1. The provisions allowing the imposition of limitations upon individual and aggregate contributions and expenditures have been expanded. The disclosure requirement originally contained in Section 2 of H. J. Res. 48 has been moved to Section 5 of the Subcommittee’s proposed amendment and expanded.

Section 5 borrows from other currently or recently proposed federal amendments to expand upon the penultimate sentence of Section 2 of H. J. Res. 48 regarding disclosure. It sets forth the rationales or purposes for disclosure legislation, procedures and rules to be enacted and made in accordance with the amendment, and for future courts to be guided by in determining whether the amendment is being served by them.

Section 6 is also the invention of the Subcommittee. It adds two practical components that will be key to the effectiveness of the amendment: enforcement and adequate funding. The Subcommittee anticipates that unless required in the amendment, the purpose and effect of the amendment could be defeated simply by the legislative bodies not providing adequate funding and/or meaningful penalties and enforcement.

Sections 7 expands upon and helps clarify the intent of the last sentence of Section 2 of H. J. Res. 48 that legislation enacted in accordance with the intent, direction and guidance of the amendment not be subject to constitutional challenge in the courts.

Although NMMOP firmly believes that a robust system of public campaign finance would help alleviate if not eliminate the undesirable results that come from unlimited, unregulated private campaign finance, and even may be necessary to bolster a system of reduced private campaign finance, it has been omitted from this proposed amendment because we anticipate that in the current political climate there would be too much resistance from conservative elements to a bill that would include the concept of public campaign finance.