You are on page 1of 8

CLEMENTS_FORUM 2/21/2019 3:28 PM

A Citizens Commission for the 28th


Amendment:
Massachusetts Advances Constitutional
Reform of Our Broken Political System

JEFFREY D. CLEMENTS1 AND BRIAN J. BOYLE2

INTRODUCTION

The Commonwealth of Massachusetts recently took a pioneering step


toward healing America’s ailing democracy. On November 6, 2018, the
people voted overwhelmingly in favor of Ballot Question 2.3 Question 2
creates a first-of-its-kind Citizens Commission to advance a twenty-eighth
amendment to the United States Constitution that would limit the
influence of money in elections and clarify the distinctions between human
beings and economic entities (e.g., corporations and unions) under the
Constitution. Through the work of the non-partisan Citizens Commission,
Massachusetts will lead the national effort to secure principles of self-
government (such as anticorruption and political equality) to our
constitutional order, and to empower voters over money in the political

1 Jeff Clements is president of American Promise (www.americanpromise.net). He

previously served as Assistant Attorney General & Chief of the Public Protection Bureau in
the Massachusetts Attorney General’s Office, and was a partner at Mintz Levin and in his own
firm in Boston. He serves on the Advisory Board of the Boston Lawyers Chapter of the
American Constitution Society. The author thanks American Promise’s Writing the 28th
Amendment program and the legal scholars, judges, elected officials, and thousands of citizens
who have participated. More information is available at
http://www.americanpromise.net/writing_the_28th_amendment.
2 Brian Boyle is Senior Law Fellow at American Promise. He was previously an attorney at

WilmerHale and a clerk at the Massachusetts Appeals Court. He currently runs his family-
owned insurance brokerage and serves as a volunteer in town government.
3 Secretary of the Commonwealth of Massachusetts, Summary of Question Two,
MASSACHUSETTS ELECTION STATISTICS, https://perma.cc/4JZ7-PPMH (The vote was 1,871,989
(71.4%) in favor and 751,447 (28.6%) against).

101
CLEMENTS_FORUM 2/21/2019 3:28 PM

102 New England Law Review Forum Vol. 52

process. This article briefly explains the need for an amendment and
discusses how the Citizens Commission is expected to advance the cause.

I. Why do we need the 28th Amendment?

Amending the Constitution is serious business. James Madison argued


that it should be reserved for “certain great and extraordinary occasions.”4
So what is motivating the people of Massachusetts to advance an
amendment? The answer is that the Supreme Court has left no other
method for correcting its failed experiment in fabricating a First
Amendment theory that unlimited money in elections is simply free speech
and may not be regulated.

a. We are in the middle of a misguided Constitutional experiment.

The experiment began in 1976 with the Court’s decision in Buckley v.


Valeo.5 At issue in Buckley were several provisions of the Federal Election
Campaign Act of 1971, including limits on contributions to candidates and
independent expenditures. In striking down the expenditure limits as
violative of the First Amendment, the Court made two far-reaching
doctrinal moves. First, it treated money as tantamount to speech. 6 Second,
it rejected political equality as a governmental interest that could justify
expenditure limits.7
These two concepts became foundational elements in the Supreme
Court’s review of challenges to even-handed election spending rules over
the next four decades. For example, in First National Bank of Boston v.
Bellotti, the Court again reckoned that money equals speech, 8 and decreed
that the equal rights of Americans to speak, be represented, and participate
in elections is not a compelling interest that warrants campaign spending
restrictions.9 In dissent, Justice White highlighted the risks of the majority’s

4 JAMES MADISON, Federalist No. 49, in 2 THE DEBATE ON THE CONSTITUTION 143 (Bernard

Bailyn ed., 1993).


5 Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).
6 See id. at 19 (“A restriction on the amount of money a person or group can spend on
political communication during a campaign necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of their exploration, and the size of the
audience reached.”).
7 See id. at 48-49 (“[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.”).
8 First Nat'l Bank v. Bellotti, 435 U.S. 765, 786 (1978) (describing a Massachusetts criminal

statute that prohibited business corporations from making certain campaign contributions or
expenditures as a “prohibition . . . directed at speech itself”).
9 See id. at 789 (discounting the argument that “corporations are wealthy and powerful and

their views may drown out other points of view”).


CLEMENTS_FORUM 2/21/2019 3:28 PM

2019 A Citizens Commission for the 28th Amendment 103

theory: “[T]he special status of corporations has placed them in a position


to control vast amounts of economic power which may, if not regulated,
dominate not only the economy but also the very heart of our democracy,
the electoral process.”10
The general public began to realize the radical nature of the Court’s
jurisprudence after Citizens United v. Federal Election Commission came
down in 2010. In a 5-4 decision, the Court held that corporations could
spend unlimited money from their general treasuries to advocate for or
against candidates.11 Writing for the majority, Justice Kennedy invoked
Buckley for the idea that we cannot limit election spending by powerful
corporations just to enable other, less powerful voices to be heard. 12 The
Court also narrowed corruption as a rationale for campaign finance
regulation. It concluded (contrary to common sense and experience) that
although political expenditures may buy influence and access, such
“[i]ngratiation and access . . . are not corruption.”13 Today, mentioning
“Citizens United” serves as shorthand for the notions that money equals
speech, corporations are people, and equality and checks against systemic
corruption take a backseat.14

b. The Power of concentrated money in elections is undermining the


American political system.

Through Buckley and its progeny, the Court has construed the principle
of political equality and anti-corruption checks and balances out of the First
Amendment, and this doctrinal turn has had major consequences for our
political system. We are lurching toward oligarchy: ordinary citizens have
little to no impact on policy,15 while billionaires are enshrining their views

10 Id. at 809.
11 Citizens United v. FEC, 558 U.S. 310, 364-366 (2010).
12 Id. at 350 (“Buckley rejected the premise that the Government has an interest ‘in

equalizing the relative ability of individuals and groups to influence the outcome of
elections’”(quoting Buckley, 424 U.S. at 48)).
13 Id. at 360-361.; See also Lawrence Lessig, Corrupt and Unequal, Both, 84 FORDHAM L. REV.

445 (2015) (arguing that the Framers’ conception of corruption would have included
institutional corruption through unequal influence and access).
14 See, e.g., Leo E. Strine, Jr., Corporate Power Ratchet: The Courts’ Role in Eroding “We the

People’s” Ability to Constrain Our Corporate Creations, 51 HARV. C.R.-C.L. L. REV. 423, 426 (2016)
(arguing that Citizens United “asserted that business corporations possess free speech rights
equal to those of human citizens” and “freed corporations to pour money directly into the
political process”); Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 HARV. L. REV.
143, 145 (2010) (“The outcome of Citizens United is best explained as representing a triumph of
the libertarian over the egalitarian vision of free speech”).
15 See Martin Gillens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest

Groups, and Average Citizens, 12(3) PERSPECTIVES ON POLITICS 572 (2014) (concluding that
CLEMENTS_FORUM 2/21/2019 3:28 PM

104 New England Law Review Forum Vol. 52

through the “stealth politics” of quiet-but-prodigious political


contributions.16 In the recent mid-term elections, a sliver of the U.S.
population (0.42%) accounted for more than 70% of political
contributions.17 And elected officials from both sides of the aisle have
decried the current system’s effects on their job performance.18 As Justice
Breyer has put it, “[w]here enough money calls the tune, the general public
will not be heard.”19

c. Self-government and political equality are at risk.

An election system awash in big money is not just unseemly; it mocks


the principles of self-government and equality that are at the heart of
American democracy, and it deprives Americans of equal rights as citizens
in a republic. Our national commitment to self-government goes back to
the Declaration of Independence and is effectuated through the structure of
the Constitution.20 Likewise, the principle of political equality was central
to our founding moment, and it has stirred our moral growth as a nation at
critical moments in history.21 But with its campaign finance jurisprudence,
the Supreme Court has fabricated a First Amendment barrier to self-
government and political equality.22 Instead of following the path set out
by the Supreme Court, the American people have the power to change it –
by amending the Constitution.

ordinary citizens “have little or no independent influence on policy at all”).


16 Benjamin I. Page, Jason Seawright, & Matthew J. Lacombe, What Billioniares Want: The

Secret Influence of America’s 100 Richest, THE GUARDIAN (Oct. 31, 2018), https://perma.cc/GJW9-
T8EK.
17 See American Promise, When Money is Speech, Who Does the Talking?,
https://perma.cc/PQ2T-GUY5 (last visited Jan. 25, 2019).
18 See, e.g., Zach Wamp, Congress Must Reform its Rigged ‘Dial for Dollars’ Fundrasing System,

THE HILL (May 30, 2017, 5:00 PM), https://perma.cc/XC5U-ULAU; Steve Israel, Confessions of a
Congressman, N.Y. TIMES (Jan. 8, 2016), https://perma.cc/MX2X-FUST.
19 McCutcheon v. Federal Election Commission, 572 U.S. 185, 237 (2014) (Breyer, J.,

dissenting).
20 See Christopher L. Eisgruber, CONSTITUTIONAL SELF-GOVERNMENT 3 (2001) (“The

Constitution [is] a practical device that launches and maintains a sophisticated set of
institutions which, in combination, are well-suited to implement self-government.”).
21 See Gordon S. Wood, THE RADICALISM OF THE AMERICAN REVOLUTION 518 (1992)

(“Equality was in fact the most radical and most powerful ideological force let loose in the
Revolution. Its appeal was far more potent than any of the revolutionaries realized. Once
invoked, the idea of equality could not be stopped, and it tore through American society and
culture with awesome power. It became what Herman Melville called ‘the great God absolute!
The centre and circumference of all democracy!’”).
22 See J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle
to Political Equality?, 82 COL. L. REV. 609, 609 (1982) (arguing that the Supreme Court has
created “an artificial opposition between liberty and equality”).
CLEMENTS_FORUM 2/21/2019 3:28 PM

2019 A Citizens Commission for the 28th Amendment 105

d. The 28th Amendment is the only viable remedy.

Some might wonder whether a Constitutional amendment is an


appropriate way to change course. Those advocating for the amendment
believe it is not just appropriate, it’s our only option.23 The values at stake
– self-government and political equality – are of “abiding importance.”24
The proposed amendment would give all speakers a real role in our
elections, thereby “mak[ing] our system more politically responsive.”25
And because the Supreme Court has made clear that it will not change
course, a clarifying amendment is the only feasible mode of change. 26

II. How will we achieve the 28th Amendment?

A national effort to pass the 28th Amendment is being led here in


Massachusetts. American Promise is a non-profit organization that is
building a grassroots, cross-partisan movement to ensure that citizens, not
big money, govern America. It is pursuing a three-prong strategy: (1)
supporting and amplifying local action,27 (2) building consensus around
specific amendment language,28 and (3) holding elected officials
accountable.29
This strategy is gaining steam. Under Article V of the Constitution, an

23 See American Promise, Our Goal, https://perma.cc/ZMU2-USKG (last visited Jan. 25,

2019) (explaining the reasons for the proposed amendment and the strategy for achieving it).
24 See “Great and Extra Occasions”: Developing Guidelines for Constitutional Change 7 (The

Century Foundation Press, 1999) (proposing eight guidelines for constitutional amendments).
25 Id.
26 Id. (asking whether there are “significant practical or legal obstacles to the achievement
of the objectives of the proposed amendment by other means”); See also McCutcheon v.
Federal Election Commission, 572 U.S. 185 (2014) (holding aggregate campaign contribution
limits invalid under the First Amendment); American Tradition Partnership, Inc. v. Bullock,
567 U.S. 516 (2012) (holding that Citizens United applies to state campaign finance laws);
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011)
(invalidating the matching funds provision of Arizona’s public financing system).
27 American Promise now has over 200,000 citizen leaders working together in all 50 states.

Its members hold community events, write letters to the editor, meet with elected officials,
and stay informed through phone calls and an online network. See American Promise, Take
Action, https://perma.cc/LMT4-29XA (last visited Jan. 25, 2019).
28 Through its “Writing the 28th Amendment” program, American Promise is bringing
together constitutional scholars, law professors, elected officials, and civic leaders to
formulate specific language for the amendment and inform the American public. See
American Promise, Writing the 28th Amendment, https://perma.cc/U68F-Y8UX (last visited Jan.
25, 2019).
29 The Pledge Campaign secures candidates’ support for the 28 th Amendment and tracks
signatories in a database. See American Promise, About American Promise,
https://perma.cc/K356-YCYN (last visited Jan. 25, 2019).
CLEMENTS_FORUM 2/21/2019 3:28 PM

106 New England Law Review Forum Vol. 52

amendment can be proposed by two-thirds of Congress and then ratified


by three-fourths of the states.30 To date, 19 states and over 800
municipalities have passed resolutions calling for the 28 th Amendment.31
In the 2018 midterm election, over 250 candidates signed the American
Promise Pledge.32 And nearly 200 members of the current Congress have
committed to voting for the 28th Amendment.33
Apart from its effectiveness, American Promise’s strategy itself
embodies the principles of the 28th Amendment. By cultivating grassroots
movements, the strategy allows ordinary citizens to harness their energies
and participate in self-government on an equal footing. Such participation
is the essence of the popular sovereignty that made America exceptional at
its founding,34 and is necessary to preserve our national character for future
generations.
An outgrowth of American Promise’s mission was the “Yes on 2”
campaign to support Massachusetts Ballot Question 2. The purpose of
Question 2 is to establish a non-partisan, 15-member Citizens
Commission35 that advances the cause of the 28th Amendment by making
concrete recommendations in its favor. Now that Question 2 has passed by
a large majority, the law takes effect on January 1, 2019 and the work of the
Commission will begin.36

III. How will the Citizens Commission advance the cause?

With the Citizens Commission, Massachusetts will lead the path to


passage and ratification of the 28th Amendment. To date, no other state has
created a public body whose very purpose is to “report[] and mak[e] such
recommendations as may be of assistance in drafting, promoting,

30 U.S. CONST. art. V.


31 American Promise, State and Local Resolutions, https://perma.cc/B22B-5A4D (last visited
Jan. 25, 2019).
32 See American Promise, Pledge Campaign, https://perma.cc/3FUL-MN6V (last visited Feb.
21, 2019) (showing that 257 candidates pledged in 2018).
33 United for the People, Congress By the Numbers, https://perma.cc/MPM2-AS6P (last

visited Jan. 25, 2019).


34 See Alexis de Tocqueville, 1 Democracy in America 60 (J.P. Mayer, ed., 1969) (identifying

the “sovereignty of the people” as “the cause and the end of all things; everything rises out of
it and is absorbed back into it.”).
35 The following state officials will each make three appointments to the Citizens
Commission: the Governor, the Secretary of the Commonwealth, the Attorney General, the
Speaker of the House, and the President of the Senate. See American Promise, Initiative Petition
for a Law Relative to Establishing a Citizens Commission Concerning a Constitutional Amendment to
Secure Government of the People at § 3(a), https://perma.cc/S6QR-XYN3 (last visited Feb. 21,
2019).
36 2018 Mass. Acts ch. 322, available at https://perma.cc/276Q-9ADA.
CLEMENTS_FORUM 2/21/2019 3:28 PM

2019 A Citizens Commission for the 28th Amendment 107

proposing and ratifying” the amendment.37


The Commission is designed to be transparent and accessible to the
public. Those wishing to serve on the Commission must apply publicly
through a website established by the Governor’s office,38 and the
application materials will be posted on the website. Service on the
Commission is open to any interested citizen. To promote diversity of
viewpoints, the appointing authorities must “have due regard for the non-
partisan nature of the Citizens Commission, and shall seek to ensure that
the Citizens Commission reflect range of geographic, political, and
demographic backgrounds.”39
Once appointed,40 the Commissioners will have two basic functions: (1)
finding facts and reporting on how political money is deployed in
Massachusetts, and on the impact of the Supreme Court’s expansion of
Constitutional rights wielded by corporations; and (2) analyzing and
making recommendations on proposed language and methods of
advancing the 28th Amendment.
Under Section 3(i) of the new law, the Commissioners must meet
regularly “to gather evidence, testimony, and advice” and give “all
residents . . . a reasonable opportunity to offer their views and ideas”
regarding the amendment.41 Through these fact-finding powers, the
Commission will determine the “nature and impact” of election spending
in Massachusetts, such as the effects of so-called dark money and corporate
spending. The Commission will also analyze the various proposed
constitutional amendments that have been introduced in Congress so far. 42
It will seek input from constitutional law scholars as it considers specific
amendment language, and it will ultimately issue a report with specific
recommendations for promoting and ratifying the 28th Amendment.
The Commission’s first report is due by December 31, 2019. Shortly
after receipt of the report, the Secretary of the Commonwealth will deliver
it to all members of the Massachusetts legislature, all members of Congress,
and the President of the United States. 43 Question 2 then urges our elected
officials to “carefully review the Citizens Commission’s findings and take
all constitutional and lawful actions to further the proposal and ratification
of the recommended constitutional amendment or amendments.”44

37 Id. § 1(c).
38 Id. § 3(b).
39 Id. § 3(f).
40 Id. § 3(e) (The 15 Commissioners must be appointed by May 1, 2019).
41 2018 Mass. Acts ch. 322, § 3(i).
42 Id. § 4(a)(iv).
43 Id. § 4(b)-(c).
44 Id. § 4(e).
CLEMENTS_FORUM 2/21/2019 3:28 PM

108 New England Law Review Forum Vol. 52

CONCLUSION

Massachusetts has an opportunity to promote an urgent course


correction in the way money corrupts our political process and deprives
Americans of equal representation and rights as citizens. The 28th
Amendment will secure the right of all Americans to participate in self-
government as equals, and it will protect the integrity of our elections by
permitting reasonable regulation of political spending. If you are interested
in serving as a Commissioner, or helping the Commission with its work,
please sign up online at https://perma.cc/YM4Q-ECVL. The citizen
commission application page, for those interested in applying, can be
found at https://www.mass.gov/orgs/citizens-commission-created-by-2018-
ballot-question-2.