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To Put Voters First Again, Amend the Constitution

It's the only way to undo the damage the Supreme Court did when it overturned laws regulating the raising and spending of campaign money. It has bipartisan support, and states should lead the way.

A set of silver scales.
When the founders wrote "We the People," do you think they were intending corporations to have the same inalienable rights as you and I have? Do you think they could have imagined that "free speech" meant the ultra-wealthy and special interests funding the multibillion-dollar disinformation campaigns that so many of our elections have become?

Ten years ago, the U.S. Supreme Court's ruling in Citizens United v. Federal Elections Commission nullified bipartisan law regulating the raising and spending of money in elections and opened the floodgates for corporate and unregulated money in our electoral process. The court's ruling was based on the notion that any reasonable limits on election spending violate free speech.

The court is unlikely to reverse course, so we need a constitutional amendment. Twenty-seven times in our history — and nearly every decade in the 20th century — Americans have used this two-step process: a two-thirds vote of the House and Senate followed by ratification by three-fourths of the states. Now it is time to do this again — time for all Americans and every state to join the campaign for the 28th Amendment to the Constitution.

Nothing could make the need clearer than the 2020 elections, which set the record for spending: about $16 billion counted so far with even more not yet known. Consider just the races for control of the U.S. Senate: Big donors fueled nine of the 10 most expensive Senate races in our history, totaling more than $2.1 billion. Most of this money came from an elite group of wealthy donors, unions and global corporations.

Most Americans cannot afford to send money to politicians or super PACs; just 1.4 percent contribute more than $200. In the past decade, more than $70 billion has poured into elections, most of it coming from an elite "donor class" in both major parties. Vast amounts — no one knows how much — of "dark money" from concealed sources now drives elections at the federal, state and even local levels.

The amount of corporate and unregulated spending has increased exponentially. In 2010, before the Citizens United decision, so-called indirect expenditures (think of PACs, super PACs and dark money) amounted to a minuscule fraction of total spending. But by 2016 it was over $1.4 billion, a fiftyfold increase in six years.

A constitutional amendment to enable reasonable, even-handed spending limits for local, state and federal elections would strengthen free speech rights for all Americans, combat corruption and reconnect elected officials to those they are supposed to represent: their constituents.

Millions of Americans already have joined the campaign to make such an amendment a reality. With a resolution passed by Alaska's voters in November, 21 states have now made formal requests for Congress to initiate the process, and several proposals for such an amendment have been introduced in Congress.

It's an issue that has the support of large majorities of Americans, Democrat and Republican alike. That was reflected in Massachusetts' November 2018 election, when 1.8 million of the state's voters — 71 percent — approved a law to establish a Citizens Commission to examine issues related to out-of-control spending in elections. After extensive research and testimony at 20 public hearings, the commission issued two reports, in December 2019 and August 2020. These reports detail the damage to democracy and representation of the people since the Supreme Court invalidated many campaign finance laws, provide recommendations for language for constitutional amendments, and propose a multi-dimensional ratification strategy.

The work of the Massachusetts commission is a resource that can help other states advance the issue. At the national level, a nonpartisan commission convened by the American Academy of Arts and Sciences included this constitutional amendment among its specific recommendations for urgent action to renew and protect American democracy.

Enabling Congress and the states to reasonably regulate raising and spending money in elections should not be a partisan issue. Now it is time to make it happen. Americans and every state need to mobilize to get the 28th Amendment out of Congress and back to the states for ratification before the next tsunami of money and disinformation swamps our electoral system.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.

A former Massachusetts state comptroller
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