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2 thoughts on “Want Money Out of Politics? Eliminate Government Discrimination

  1. Ken Presting

    Let me begin by applauding the spirit of intellectual cooperation in Matt’s post.  I couldn’t agree more with that general goal, and with the specific suggestion to avoid favoritism.  I’d say his idea echoes the “equal protection” clause of the 14th Amendment.

    Also, I appreciate the attitude of those like the ACLU who
    agree with Justice Kennedy that freedom of speech must be absolute.  The
    problem is how to maintain that commitment, while also recognizing that
    equality is at risk.  Persons are not equal anymore when not only
    elections but also every step in the legislative process is influenced by
    campaign financing.  Here is the problem: five justices concluded that
    equality must be sacrificed to preserve free speech. 

    I believe that if we understand the doctrines of equal
    protection and free speech from the correct perspective, we can see that they
    are orthogonal, independent issues.  We can simultaneously maximize our
    commitment to both.  As I read Stevens’ dissenting opinion, this
    perspective is already implicit in the Bill of Rights.  Any new amendment
    need only clarify the Founder’s intent.   

    The key is in Justice Kennedy’s own view that access to
    information is the true goal of the First Amendment.  Freedom of speech
    has never entailed that advertisers can place unlimited billboards in any
    public space, nor that they can play messages at any volume at all hours. 
    Every municipality regulates expression – it’s the content which is protected.

    To me, the centerpiece of Lessig’s view is that we should demand a
    higher standard of confidence that our government avoids corruption.  It’s
    not sufficient to declare bribery a crime.  Simply by exercising its
    police and national defense functions, the government will always be a target
    for opportunists.  Add to that the regulation of commerce and the budget
    for public works, and the legislature becomes an irresistible magnet for
    influence-peddlers.  Each loophole for a special interest could generate
    huge profits.  “Smaller government wouldn’t solve this.  Our Congress
    is almost prostrate before its contributors.  Legislators need both the
    motivation and the tools to keep themselves honest.

    Here is the text I would submit for a clarifying Amendment:

    1.       All persons are guaranteed absolute
    freedom to learn and share public information. Congress shall make any laws
    necessary and proper to protect fair and open access to information.

    2.       All natural persons shall have equal and
    unimpeded opportunity to vote in every election for which they are otherwise
    qualified. Every vote cast in any election shall have an equal effect on the
    outcome. Congress shall make any laws necessary to protect the equal influence
    of every voter upon their elected representatives.

    3.       The most essential duty of any government
    is to retain the trust of its citizens. Therefore, Congress and every agency
    shall conduct their deliberations and operations in such manner as to display
    to any unbiased observer that beyond a reasonable doubt, both freedom of
    communication and equal protection under law are consistently upheld.

    Specific rules and limits for campaign finance can be
    addressed by legislation, rather than by an amendment.  What this
    amendment would do is undercut Supreme Court originalists arguing that any
    legislation to restrict campaign spending is inherently a law limiting speech. 

    Section 1 clarifies the First Amendment freedoms of speech
    and press.  Hopefully, it satisfies the concerns of Justice Kennedy and
    the ACLU.  It also subtly changes the responsibilities of Congress from
    the “hands off my free speech” prohibition against censorship, to being a
    positive power to protect open access.  This could, perhaps, influence the
    fate of Net-neutrality legislation and whistleblower protections.

    Section 2 states that the concept of equal protection works
    both ways between voters and representatives.  Not only are citizens all
    equally subject to the laws, but also equally sovereign over our
    legislators.  It’s unnecessary to say anything about corporations once
    it’s clear that only real people vote — as long as those votes count equally,
    unobstructed, all the way onto the floors of the Capitol.

    Section 3 is “radical transparency” – it recognizes that a
    government is inherently dangerous, prone to overreaching and to corruption of
    every kind.  We could never be sure beyond a reasonable doubt that our
    legislature is free of all corruption.  But we can establish fair
    procedures, and verify that they are followed.

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