Proposed Constitutional Amendment on Election Reform

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Hi everyone,

I just wanted to get us all thinking about the big issue that hasn’t been tackled yet. I’d love to hear your comments, and I look forward to discussing this and other, competing ideas at a future meeting.

-Patrick

 

Constitutional Amendment #28 (PROPOSED DRAFT)

Every election in the land shall be purely publicly funded. No private funds can be spent on any electoral campaign, of any kind, in any way. All candidates and individuals proposing ballot initiatives will be given equal access to the same publicly-owned communication and travel resources, such that the only differences presented to the voting public between the candidates or ballot initiatives will be their ideas.

Every citizen of voting age may petition for access to the ballot for themselves as a candidate or for a ballot initiative of their choosing upon the collection of the legal signatures of 5% of the resident citizens in each of the relevant electoral districts. Every citizen of voting age choosing to cast a vote in any election is guaranteed an equal, counted vote. No election results may be officially certified or otherwise made public until every vote cast has been counted. No voting system may be used that does not allow both transparent tabulation of votes and also simple and independent verification of the certified results. All citizens residing in any given electoral district, without exception, shall retain full and unobstructed voting rights in each and every election held in that district, including primaries.

Candidates, individuals proposing ballot initiatives, election workers, elected officials or any other individuals found to be in violation of any provision herein shall be immediately and permanently disqualified from holding any elected office and also from having any involvement of any kind in the functioning of subsequent electoral contests. Individuals involved in repeat violations shall be subject to trial for the crime of treason.

 

Suggested by:

Patrick Conway

psconway@aol.com

646.251.5385

12 Responses to “Proposed Constitutional Amendment on Election Reform”

  1. Anne

    “Every election in the land shall be purely publicly funded. No private funds can be spent on any electoral campaign, of any kind, in any way.”

    We have discussed this a bit. It might be theoretically possible, but under the current Supreme Court and Constitution it would be ruled unConstitutional.

    ” All candidates and individuals proposing ballot initiatives will be given equal access to the same publicly-owned communication and travel resources, such that the only differences presented to the voting public between the candidates or ballot initiatives will be their ideas.”

    We don’t have publicly owned communication in the US. What do you mean by publicly owned travel resources–the subway and the highways? No one is currently restricted from using these resources. (?)

    “Every citizen of voting age may petition for access to the ballot for themselves as a candidate or for a ballot initiative of their choosing upon the collection of the legal signatures of 5% of the resident citizens in each of the relevant electoral districts.”

    This already exists in some form or another in most localities.

    “Every citizen of voting age choosing to cast a vote in any election is guaranteed an equal, counted vote.”

    This is already guaranteed under the Constitution.

    ” No election results may be officially certified or otherwise made public until every vote cast has been counted.”

    Candidates are already free to challenge results and ask for recounts for a variety of reasons, as we have seen in many recent elections.

    ” No voting system may be used that does not allow both transparent tabulation of votes and also simple and independent verification of the certified results.”

    In any legal document you must define your terms. What is the definition of “transparent,” “simple,” and “independent.”

    “All citizens residing in any given electoral district, without exception, shall retain full and unobstructed voting rights in each and every election held in that district, including primaries.”

    Already generally guaranteed under the Constitution…except for some reason some states have taken the right to vote away from felons…is this what you’re referring to?

    “Candidates, individuals proposing ballot initiatives, election workers, elected officials or any other individuals found to be in violation of any provision herein shall be immediately and permanently disqualified from holding any elected office and also from having any involvement of any kind in the functioning of subsequent electoral contests. Individuals involved in repeat violations shall be subject to trial for the crime of treason.”

    It’s not clear how some of the individuals you named would violate the above provisions or if they would be the only ones responsible should the above provisions be violated.

  2. Patrick Conway

    I think that you may have missed some of the point of my posting a proposed Constitutional Amendment, Anne. While you say that many of these things are already guaranteed in the Constitution, the reality is otherwise. Primary voting is restricted to registered members of a particular party, for instance. I wouldn’t mind re-enfranchising felons, but it might be a good idea to think that through a bit further, maybe add a prohibition on those with serious criminal backgrounds running for election if its not already present in the Constitution.

    In addition to the highways and subway systems owned by the public, there are all the airwaves, leased to private companies, but also owned by the people. And there are a ton of government cars, vans and buses that could be put to use in moving candidates around exclusively on the people’s dime, and others could be purchased for that purpose. Same idea with space for statements in newspapers: the government could purchase that space, and then make that publicly-owned resource available to candidates.

    “In any legal document you must define your terms.” The Constitution is generally an exception. I think of “clear and present danger” or “cruel and unusual punishment,” for examples. That said, I wouldn’t mind seeing further discussion on specific ideas if you had them on this.

    I disagree that the Constitution already guarantees that each citizen is guaranteed an equal, counted vote. Where is that in the existing document exactly? When we find it, I’m going to call all the people in Florida who were disenfranchised back in 2000. There are tens of thousands more in every major election, it seems, so it might be a good idea to put it in there again, especially since some Supreme Court justices always seem to miss the first mention.

    I could continue to go point by point, but I think a better idea is to ask you what you think serious electoral reform should look like? Whatever it is, if it doesn’t happen in the form of a Constitutional Amendment, it’s at serious risk for being overturned by the same Supreme Court that gave us the Citizens United decision.

  3. j anthony

    Patrick,
    Thanks, really! Nice work on this.
    What are some possible mechanisms for funding elections? A democracy trust (fund)? Would it have to be a government body? Could it be an independent nonprofit, a hybrid of some sort? Could whatever it is also fund the media infrastructure that candidates might have access to? Unless the independent media component is strong, how can elections become forums and educational?
    I like the idea that all candidates for any office be limited to working from the same set of campaign resources, and that things be done simply and inexpensively. The people and the ideas are what matters, not the horse race stuff.
    I do see campaign financing, lobbying, and corporate media dominance as interlocking. They seem to compose a single system by which democracy has been privatized and perhaps need to be conceptualized and transformed relationally?

  4. Susan

    Patrick, I appreciate the simplicity of your proposal and think it is very much needed. I know that there will be a need for clarification but it covers some major areas that must be addressed.
    ******
    “Every citizen of voting age choosing to cast a vote in any election is guaranteed an equal, counted vote.”

    Many believe that there is an constitutional right to vote but there is not and what is there is stated in a negative way. States may not deny a individual the right to vote based on certain things such as sex and race and the paying of taxes. I am not sure about religion being specified in any of the amendments that address voting. It would be interesting to see how the recent voter ID laws would stand if there was actually a constitutional guarantee to vote.

    However, the key here is that you have “counted vote”. Anyone that has followed elections knows that every election thousands+ votes are not counted all over the country. There is a well documented record of this. It has become more and more a problem with electronic voting and vote counting machines. The vote is counted in secret by easily hacked and manipulated with malware electronic vote counting machines. This is also well documented. If we are to have real elections where every vote is counted as cast, then we must have Hand Counted Paper Ballots counted two times by two different teams of counters and observers at the precinct the night of the election.
    ******
    ” No election results may be officially certified or otherwise made public until every vote cast has been counted.”

    We often see that the first one to declare victory wins and all to often there is a rush to claim victory before every vote is counted. Often the one declaring victory will smear and decry the opponent if there is any suggestion that the results may be challenged. I also think about the 2000 and 2004 presidential elections and know things would have been different if indeed every vote had been counted.
    ******
    ” No voting system may be used that does not allow both transparent tabulation of votes and also simple and independent verification of the certified results.”

    Okay, I admit I really like seeing this because I know that this only describes the Hand Counting of Paper Ballots. Votes being run through a machine do not allow for a transparent tabulation. Also for verification to be simple and independent, it must take place the day of the election at the precinct polling place. You cannot have a verification where there is any opportunity for a break in the chain of custody of the ballots. Major issues and problems with ballot custody have been discovered in elections where there has been a recount. Again, Hand Counted Paper Ballots, counted two times by tow different teams of counters and observers and observed by all that would like to do so and recorded by at least recording devices would go a long way in restoring the people’s voice and being heard via elections.

    Because I have said “well documented”, I will note sites like Election Defense Alliance, VoteScam, The Center for Hand Counted Paper Ballots, The BradBlog and BlackBoxVoting as sites where one can get more information.

    I

  5. Jesse Ladner

    @psconway

    I may not make tomorrows meeting because of the actions planned. There is a lot I like about your draft as a starting point, but I do feel that it would ultimately have to use much different language.

    As an example, let me start with the second sentence: “No private funds can be spent on any electoral campaign, of any kind, in any way.”

    Unfortunately, I think it is extremely difficult to draw a line between spending money on an electoral campaign “in any way” and spending money to voice your opinion about politics or especially about an individual candidate. Would the NYT still be able to comment on candidates, or would they ultimately face treason charges? Could I go to kinkos and print a flyer advocating for gay marriage during a campaign where that was even a marginal issue? Could the ACLU pay a staff blogger who would condemn a candidate for their stance on civil liberties? Can an OWS group purchase a domain and operate a website which advocates that candidates not take private money???

    Any attempts to reign in campaign finance must pay extremely close attention to the freedom of expression and use careful language so that political debate is not shut down entirely, with a severe risk of being charged with treason.

    I’ll just set that as an example, but we could go line by line. I believe you are aware of the subgroup working on a con con? While we do discuss Amendment language, with a strong focus on campaign finance reform, we do not see it as our role at this time to advocate for specific language.

    However, as I see that many people on this forum would like to discuss Amendment language, perhaps we should create a special space to discuss these. I am in favor of, and working hard toward the idea of Amending the Constitution. But, to be honest, in my opinion most of the language I see being proposed here, and by other groups including Move to Amend, creates a high risk of recklessly eroding and even eviscerating the freedom of expression. And in my opinion, the freedom of expression can not be compromised or all of our other battles will be lost.

    That said, I believe these goals can be met if done right. I would suggest that what we really need, perhaps in parallel with the camapign for a con con, is a way to educate the public about how Amendment language will function, so that the political will we generate for a con con cannot result in ratification of Amendment language with popular appeal but dangerous and difficult to undersand ramifications.

    I fear I will come off as an elitist, but I believe that legal and constitutional expertise is absolutely required to evaluate what effects any Amendment language will have.

    @xavier – what do you think about this idea? http://www.nycga.net/groups/political-and-electoral-reform/forum/topic/pre-proposal-set-up-non-profit-org-for-transparent-campaign-finance/

    I admit that it relies entirely on small private campaign donations, so maybe it is off topic here, but another possibility is that it could be funded by Congress while still being an independent non-profit.

    • j anthony

      Hi Jesse, A nonprofit funded by Congress is an interesting idea. Maybe if the whole campaign process at all levels can be made as cheap as possible by using equalized online and free-media formats and local public forums, support for govt funding might grow. But then how do you eliminate the corporate media campaign and election windfalls that drive costs up?

  6. Patrick Conway

    Hi Jesse,

    I’m not committed to any particular language, just to the idea. I think that PER is the right place for us to talk about this, and I look forward to great discussion/debate and excellent input on improving the text.

    I guess there’s a distinction between exercising one’s right to free speech and using one’s pocketbook to try to influence an electoral outcome unequally. Carrying a sign that you made yourself, and talking to every single person you meet about your candidate or issue should of course be permitted as speech, for instance. Volunteering to do that formally for a campaign should also be protected. Private individuals hiring other people to do those things and to hand out thousands of signs that were mass-produced at one or a few individuals’ behest should never be protected in my opinion, however. Neither should going down to your local Kinko’s and printing up a ton of flyers and then posting them all over your neighborhood. Why not? Because we cannot guarantee as a society that all the voices that wish to be heard in any contest will have equal access to those same material resources.

    I’m primarily interested in developing a draft text that enshrines the concept of equality all throughout our electoral systems in this country. Equality not only of voters, but also of candidates and, crucially, their ideas. I’m imagining that this will require the end of the political advertising era completely and the dawn of the political information era – where each of us in the voting public is empowered to hear all the ideas and make our own decisions. I expect that everyone will use their right to free speech equally throughout that process, but I’m still quite keenly aware that none of us are equal when it comes to our pocketbooks and wallets – or ever can be equal by any financial measure.

    As for continuing to allow endorsements by the NYT, labor unions, etc., I’m not in favor. Their huge financial and communication resources make them profoundly unequal speakers in any electoral conversation. And newspapers and other media outlets are owned by individuals or corporations who have a particular point of view and, frequently, a vested interest in the outcome of elections. Why do we care what they think over what we ourselves think? Let all the people hear the arguments and debates equally, I say, and then let them make up their own individual minds once they have heard the relevant information.

    All these stupid ads and endorsements are just a way for private interests to enter the conversation at a very high level and then control and prejudice the outcome — I really think that they all have to come to an end. Independent coverage in the media? Surely. Electoral opinions in the media? Surely not, unless we want to actually call them ‘corporate citizens’ and actually let them cast one or more votes. They’re just going to do what they already do now: GE likes candidate A, then NBC (which GE owns) backs candidate A’s platform, pretending to speak as an ‘independent’ media voice/public watchdog. Candidate B doesn’t get a major corporation behind him or her, gets no media endorsements and is subsequently at a profound disadvantage in the contest (and maybe Candidate B just also happened to be against unfair tax breaks or other giveaways to GE).

    ***Inequality in the system is the underlying problem here, in my opinion.***

    I invite us to consider what draft text will provide the curative equality that we desperately need. Check out the OWS.org forum: there’s almost always a bunch of very active posts that are seeking and end of money in politics, in some form. This issue is the next one that PER needs to address, and the right time to do it, I believe, is now.

    http://occupywallst.org/forum/

    Looking forward to more discussion,
    Patrick

  7. Carl Peter Klapper

    The problem is the political parties. Abolish the Twelfth Amendment and you take away the main source of their power: a single-party Executive branch and the enshrining of a manipulative campaign tactic of the Democratic-Republicans which was first used to accomplish this. Another, more personal way of dethroning partisan power is for each of us who is not already registered unaffiliated to switch to that status (however named) and to join or start unaffiliated registration drives. I can tell you that there are plenty of disheartened people out there who are not registered to vote and do not know the power of unaffiliation to register their displeasure. Finally, we can start nomination petition drives to flood the ballot with independents for whom unaffilateds can vote. Along these lines, we need to put free electors on the ballot in each of the states.

  8. Jesse Ladner

    Pat,

    I like your ideas although I think there is a danger in limiting things like mass flyering or other advocacy that costs money by an individual or association. This creates a real danger that some marginalized groups or ideas will not be able to effectively reach broader audiences. I guess your point might be that we need a system where all of those voices would have an equal opportunity to be heard, and I’d definitely be in favor of that, but I think that structure has to exist before we can limit speech at all broadly. We should perhaps focus on creating that platform to equalize all voices before we proceed to limit all voices.

    But ultimately, a related conversation I’m starting to have with a few people is this: How can we all (not just PER or NYCGA) start to have a conversation about what amendments we need and what amendment language will provide that? In my opinion this would need to bring together people like yourself who have strong ideas with constitutional and legal scholars who can truly understand and debate what language can best create the changes we seek, and what all of the unforeseen side effects might be. This is somewhat separate from the subgroup devoted to building support for a con con, but it also needs to be happening.

  9. James Hanaburgh

    Can I make a contribution?

    28th Amendment

    In protection of the Rights & Privileges of Natural Persons and the Citizens of the United States of America:

    1. Any and every individual human being who is a citizen of the United States, either by birth within her borders or by legal naturalization process, shall be granted all rights and privileges guaranteed under the United States Constitution and all Amendments thereof, including but not limited to any additional rights and/or privileges granted by the state in which they reside or are physically located. Neither the States nor Congress shall make any law limiting, abridging or otherwise circumventing these rights and privileges.
    For the purposes of this Amendment, whereas:
    (a) a “person” is defined as an individual human being -and-
    (b) a “corporation or business entity” is defined as an entity incorporated or associated for business purposes

    2. A “corporation or business entity” is not a “person” and shall not be granted the rights or privileges of such. No “corporation or business entity” shall be granted the rights or privileges of a United States citizen. Neither the States nor Congress shall make any law limiting, abridging or otherwise circumventing this distinction.

    3. The use of money does not equal free speech. Lobbying in the interests of any “corporation or business entity”, community group, religious sect or any other such association – public or private – shall be prohibited. Donations, lobbying or financial support, in the form of campaign contributions or otherwise; including but not limited to: gifts, currency, wages, or stock options, provided to members of any office of the government whether or not they are intended for the purpose of affecting policy, are deemed “bribery”. These therefore are illegal and shall not under any circumstances be construed or protected as “free speech”. Neither the States nor Congress shall make any law limiting, abridging or otherwise circumventing this prohibition.

    4. Campaigns for office on all levels shall be funded equally through a central public campaign fund whose books shall be open to the scrutiny of the people at all times. Any person or citizen may contribute to the fund in any amount. The federal government shall subsidize these funds by matching the public, in amounts not to exceed 1.5% of the Department of Defense budget, annually.

    5. Congress shall have power to enforce this article by appropriate legislation.

    **************************************************************************************************
    It’s not perfect, but it starts tackling some issues.

    Also, Rep James McGovern (D-MA) has introduced this week an Amendment he wrote, currently being called H.J. Res 88:

    http://mcgovern.house.gov/uploads/Peoples%20Rights%20Amendment.pdf

    AND there’s a petition on this website to support it:
    http://jimmcgovern.com/corporatepersonhood

  10. Jesse Ladner

    Thinking about this a bit more, it might be simpler to separate the policy debate from the amendment language debate. First agree on what the Amendment should do, then work with the language.