Every fifty years or so, Americans get the itch to amend the Constitution.
After the Civil War, three amendments were passed.
Four amendments were passed between 1913 and 1920.
And four amendments were passed in the 1960s.
Will the 2020s see another constitutional amendment?
Jeffrey Clements heads a group called American Promise, which has one goal: passage of the For Our Freedom constitutional amendment to restore reasonable limits on money in campaigns and elections.
In other words – overturning the Supreme Court’s decision in Citizens United.
Clements wrote a book about the problem – Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It (Berrett-Koehler, 2011).
He then went on a book tour and saw there was interest across the political spectrum in a constitutional amendment.
“We call the amendment the For Our Freedom Amendment,” Clements told Corporate Crime Reporter in an interview last month. “It would become the 28th amendment. The For Our Freedom Amendment has three sections. It fits on a napkin. It’s on our website.”
“Section one says – we the people have a sovereign interest in free speech, federalism, election integrity, political equality and the equal rights of everyone.”
“Section two says – therefore Congress and the states can regulate and limit money in elections and ballot initiatives.”
“Then section three says that we can distinguish between human beings and artificial entities – not only corporations, but AI and other human tools that can run amok if we don’t manage them.”
“All three of those sections are important, but the middle one is the operative one – we can limit money in politics. We can say – no super PACs, no corporate money in elections, if we want. We can say – no foreign money coming in. No billionaires spending $200 million or $300 million in elections. That will end if we want it to, because we will have the constitutional power to do it.”
“First you need two-thirds of Congress and then you need to get ratification in three-quarters of the states. You are not serious about amending the Constitution if you are not executing this sustained focus, cross partisan campaign. And there wasn’t one.”
“There were good people and good organizations, including Public Citizen. Rob Weissman is a great friend and partner on this. And many others. But nobody was tending to the conservative side of things. And I heard from conservatives on my tour as much as from progressives with the same kind of passion – sometimes for different reasons, sometimes with different vocabulary. But you could just see Americans were united on this.”
“In 2016, we launched American Promise to get it done. We had a long term game plan. We are executing that road map. We are two-thirds or so of the way there. That brings me up to now.”
Twenty-two states have passed resolutions calling on Congress to pass this amendment and send it to the states.
You need sixteen more. How many states do you have a shot at?
“If we had enough resources, we could get any state in the country. The question is resources and where do you apply them. We did a $7 million proof of concept phase. We then raised $20 million and expanded to more states. We are doubling our size and budget every year.”
“Now we are raising more money. We will have eleven states on the ground in 2025. We won in Maine at the end of 2023 with 86 percent in a ballot initiative.”
“Constitutional amendments are kicked around for a long time. This amendment was first proposed by Senator Fritz Hollings (D-South Carolina) in 1987. It’s been around for a long time in response to Buckley v. Valeo. It has accelerated in recent years. And the question is whether it just becomes – of course we are going to have to do this. As Jamie Raskin says – you have to move from impossible to inevitable.”
“And that happens when the Republican legislatures start passing this. We have won seven ballot initiatives, never lost.”
Aren’t these resolutions just signaling, expressing what the polls already show? Even if you get 38 states calling on Congress to pass this amendment, two-thirds of Congress has to vote for it. And then the state legislatures have to pass it.
“It is both signaling and the best way to engage the American people in the biggest civic project we do. And it’s the best way to get people on the record and count votes. It’s a way to influence a Congressional delegation.”
“Take a look at some of the things Josh Hawley is saying about Citizens United. He’s saying it’s not originalism. It’s got to go. We were at the Federalist Society having these conversations about how this amendment resets how money is used in the political system.”
“So there is definitely a shift. You have this cross partisan concern about the problem. It has to have somewhere to go besides shooting CEOs and some other actions by people who don’t see a remedy.”
“The state resolutions get the country engaged with the remedy we have for this problem and help people learn – it is up to us.”
One of the people on your advisory committee is Lawrence Lessig of Harvard Law School. He wrote an article in the New York Times nine years ago titled – The Only Realistic Way to Fix Campaign Finance.
In a nutshell, he said – not a constitutional amendment. Recently, he helped get a law passed in Maine that would limit the amount of money an individual could give to an independent super PAC. They were immediately sued, which is what they wanted. Lessig thinks when this challenge gets to the Supreme Court, the Court will likely uphold it, even under Citizens United. If the Court does that, that will effectively undermine Citizens United and you won’t need a constitutional amendment.
Is that accurate?
“Larry is a friend and a supporter,” Clements said. “I don’t think it is accurate anymore that he doesn’t think a constitutional amendment is a good idea and needed. That’s why he’s on our advisory council. He wouldn’t be on our advisory council if he didn’t believe in a constitutional amendment.”
He might have changed his mind, but he wrote this in the Times nine years ago – “Some say the solution is amending the Constitution. It sounds appealing, but anyone who is serious about reform should not buy it.”
“That was nine years ago. Americans will come to this when they are ready to come to this and they see other avenues are exhausted. I hope Larry is right about the Supreme Court. I don’t agree that they will fix this. We are long past the time when we should be saying – lawyers and judges should fix this, as opposed to the American people.”
“This has been a fifty year decent for America, since Buckley v. Valeo. Susan Collins was re-elected in 2014 in a $10 million Senate election that was pretty shocking to people in Maine. Six years later, it was $200 million.”
“The idea that all we need to do is engineer a lawyer’s solution so that the Supreme Court that did this will fix it for us, and we go back to whatever result – that would be a terrible mistake. The last thing we need is another five to four decision.”
What are the chances that this lawyer’s solution, as you put it, will actually work? That the case will go to the Supreme Court and the Court will say – no problem with the Maine law and that will effectively undermine Citizens United?
“I support any action of the American people that pushes back against this crazy system that the Supreme Court has created. If it is passing a law that says – super PACs are over because we are going to limit contributions to them to $5,000 – I say great, go for it. When it goes to the Supreme Court, I will be rooting for the Supreme Court to uphold the law. Am I confident that they will? No. I think they will strike it down under Citizens United. And that will be even more of an argument for the amendment. And I think Larry would say the same thing. But Larry is very confident that they will not overturn the Maine law.”
The Supreme Court said in Citizens United that Americans are not allowed to pass any anti-corruption laws that limit money in politics except as they deal with quid pro quo corruption.
“Yes, something that looks like bribery. That was the Supreme Court’s ruling. That is what Citizens United said and it goes back to Buckley v. Valeo. It’s not in the First Amendment. It’s not in the Constitution. They just made it up. Americans long had election spending rules that were not just about quid pro quo corruption. They were about the free speech of all Americans, they were about representation, they were about federalism – we don’t want to nationalize every local race with big money from somewhere else.”
“But the Supreme Court has made up a rule that you can only act to limit quid pro quo corruption. Larry’s theory is that – under Citizens United, we can’t limit the spending of a Super PAC. The Supreme Court said that independent expenditures are not quid pro quo corruption because there is no candidate to corrupt. You are giving the money to a Super PAC, not a candidate.”
“No one believes that – only the Supreme Court. All of the major candidates will have their Super PACs. They are not supposed to coordinate, but everyone knows that it probably is quid pro quo corruption. A millionaire or billionaire will say – hey candidate, I can only give you $3300, but don’t worry, I’m going to put $10 million in your Super PAC – as if that’s somehow different.”
“So, the spending can’t be limited. And the Maine law is not trying to limit the spending of Super PACs but instead it’s limiting the contribution to the Super PAC, because that’s where the corruption happens. That’s the theory.”
“So I support Larry’s initiative and persistence. But I’m committed to a different path and I see such promise in it. The lawyers have had their day. This is something the American people want solved. They know how to solve it. Three out of four Americans support the amendment. They say – we should have the right to limit money in politics. Period.”
If the Supreme Court does in fact uphold the Maine law, doesn’t that shut down the Super PACs? You will no longer be able to give $100 million to a Super PAC.
“Yes, but you could spend it directly. These days it does not seem that people are trying to hide much. Why couldn’t Elon Musk, instead of putting his $200 million in a Super PAC, he would just spend it? He would run his own operation. Increasingly, they are running their own operations.”
“In the end, the question facing the country is a constitutional one. Do we have the right to decide for ourselves on the best approaches to protect our rights, elections and government from this kind of out of control money?”
[For the complete q/a format Interview with Jeffrey Clements, 39 Corporate Crime Reporter 1(12), January 6, 2024, print edition only.]