Constitutional Amendment Won’t Solve Campaign Finance Problems

Even if it were possible to amend the constitution, the Udall proposal will not change the faulty premise upon which the “sound bite” cry for campaign finance reform is based.

New Mexico Senator Tom Udall has proposed legislation that would amend the U.S. Constitution to authorize Congress “to regulate the raising and spending of money” in elections. The measure would specifically grant Congress and the states the power to place limits on:

(1) The amount of contributions to candidates for nomination for election to, or for election to, Federal [and State] office; and

(2) The amount of funds that may be spent by, in support of, or in opposition to such candidates.

The proposed constitutional amendment would undo recent Supreme Court decisions — most notably Citizens United — that have invalidated campaign finance reform laws on a First Amendment basis.  Namely, restrictions on spending violate the right to freedom of speech.

Legislators need to look beyond the old, broken ideas of placing limits and restrictions on raising and spending money.  It is time to consider 21st Century technology and create meaningful public disclosure of campaign contributors.  Elected officials cannot be bought with contributions, but the public can be deceived when they do not know who is contributing the money.

A proposal like Udall’s does not challenge traditional thinking on the subject and would likely create unintended consequences.  However, there is little chance that campaign finance reform will be solved through a Constitutional amendment.

Since our country’s inception, more than 11,500 amendments have been proposed and only 27 have been successful. The last amendment passed in 1992 and prohibited members of Congress from receiving an increase in salary until after the next election had been held. Before that, the voting age was lowered to 18 in 1971.

Article V of the Constitution provides two methods of amendment. The amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. In either case, a successful proposal must also be ratified by three-fourths of the States (38 of 50 States), either by the state legislature or a special convention.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.