Navigating our Nation’s Amendment Process

Once again, the 113th do-nothing Congress successfully performed its job, by doing nothing.

On September 11, the United States Senate voted on Senate Joint Resolution 19 (S.J Res. 19), a proposal to amend the Constitution and grant Congress the authority to legislate regulations on federal elections spending. Senator Tom Udall (D-NM) introduced the resolution in early June of this year, and its language is terribly simplified. The resolution is composed of three brief sections, the most notable and controversial being Section 2:

“Congress and the States shall have power to enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

No one expected S.J. Res. 19 to make any meaningful progress. Substantively, the language of the proposed resolution does not address many of the complex problems that have plagued campaign finance regulations since Buckley v. Valeo, a Supreme Court decision that struck down the Federal Election Campaign Act’s (FECA) limits on independent expenditures. How can money be regulated if it is a means towards free speech? Should corporations be granted the same constitutional protections as individual citizens? If the government has the authority to limit the free speech of corporations, then can it also limit the speech of media outlets, which are corporate-owned?

And, as expected, activity on S.J. Res. 19 was uneventful. The first floor vote on the resolution was for “Cloture on the motion to proceed to the measure”, on September 8th. This motion meant that 60 votes were required to end debate on whether the resolution should come to the Senate floor, and to actually allow the resolution to be introduced on the floor. After passing through the first cloture vote, the next cloture vote to end debate on the resolution occurred on September 11th. Senators voted strictly along party lines, and the S.J. Res. 19 effectively died as it received only 54 of the 60 votes necessary to end indefinite debate on the resolution.

Even if S.J. Res. 19 had passed through the Senate, it would have had a grueling journey forward. Under Article V of the United States Constitution, Congress has the authority to initiate the constitutional amendment process when two-thirds of both House of Representatives and Senate members vote for an amendment proposal, in form of a Joint Resolution. Once the Joint Resolution receives the two-thirds majority vote from both chambers, the amendment is sent to the States, where it is officially ratified upon the approval of three-fourths, or 38 out of 50, state legislatures. Seeing as Congress is virtually deadlocked in partisan squabbles and narrow party majority margins for the next two years, it seems safe to say that no constitutional amendments will come out of Congress anytime soon.

Recent movements have concentrated on the alternative method of bringing about a constitutional amendment, one that can bypass Congress entirely. Under Article V, the amendment process can also be initiated by state legislatures. States can initiate constitutional conventions when two-thirds of state legislatures approve a call for a constitutional amendment. The same three-fourths majority vote of state legislatures is required to finally ratify an amendment. The downside to this approach is that it is difficult to find leadership and maintain coordination among state legislatures. Historically, Congress officially initiated all 27 amendments through joint resolutions. Only the 17th and 19th Amendments, mandating the direct election of Senators and universal suffrage, saw considerable initiative from western states before Congress seriously tackled the issues and passed joint resolutions.

However, many are still confident that the states can accomplish what Congress cannot. On the issue of federal spending, there has been debate as to whether the States have reached the 34-state threshold for a balanced budget amendment, since several states that originally passed such calls for an amendment in the 1980s are now attempting to rescind their applications.

In addition, Citizens for Self-Governance (CSG), headed by Tea Party activist Mark Meckler and Patrick Henry College founder Michael Farris, is promoting its Convention of States Project to stimulate state action on a range of federal issues. The Project has persuaded the state legislatures of Georgia, Alaska, and Florida into passing the Convention of States application for multiple constitutional amendments. Senator Tom Coburn (R-OK) has also shown interest in this project, and plans to work seriously with CSG after his retirement in 2017 to pass amendments on balancing the budget and setting term limits for members of Congress.

Overall, it is unclear if any of these efforts will lead to amendments on campaign finance. By the very nature of advocating for states’ rights to invoke a constitutional convention, organizations like CSG are headed by and attract conservatives who are unlikely to support regulations that may be perceived as limitations on free speech. Unless there is a strong enough Tea Party presence in these movements, there may be a chance that these organizations will throw the issue of campaign finance to the side.

Campaign finance is ultimately a complex issue for which no complete answers exist, as multiple approaches can be taken. Maybe a constitutional convention will resolve the issue. Maybe somewhere down the line, in the very distant future, Congress will muster the strength to pass an amendment. Or, as argued by Byron Tau from Politico, maybe we need to wait for the next Watergate.

Frank Yan is a third-year in the College, majoring in Political Science and Economics.