One Way Forward (11 page)

57
This is a critically important paragraph that reintroduces First Amendment values (the guarantee of government neutrality) into campaign finance regulation. The concern is that Paragraph 1 alone might be read to completely free Congress from the duty to be neutral. So, e.g., a ban on one side vs. the other. Also, Paragraph 1 doesn’t do anything to give states and localities the freedom to secure their own independence of elected officials or judges (as some states, very stupidly, choose to elect judges).

58
A big problem is who gets to enforce the rules. Existing Supreme Court doctrine makes it hard to imagine anyone with the power to force Congress to do its work. (“Force” in a weak sense of the word: nothing can really force Congress to do anything.) So this first creates a new FEC. It fills it with effectively neutral commissioners—I stole this idea from Bruce Ackerman. And it expressly says that courts have to let that commission sue to enforce the provisions of this amendment, including the ability to enjoin Congress to act. That is a very dangerous power, I know. Many democracies have tried it and failed. So this might be trouble. Nonetheless, this is a crucial part of the amendment. The current FEC is hapless and hopeless, and both are in its DNA. There must be a body with constitutional standing to hold Congress to the terms of this amendment. 

59
This is the standard clause that gives Congress “Necessary and Proper” power with respect to this amendment. So Congress gets to pass the implementing legislation, and other “appropriate” legislation. 

60
This is the general unconditional call for a convention. It excludes any of the ambiguities about whether limited calls are valid.

61
In this clause, the legislature signals which issue, among others, it wants the convention to address.

62
This clause asks Congress to exercise its Necessary and Proper Power to narrow the scope of the issues to those with substantial support.

63
This assures that the Convention not simply become a rubber stamp for Congress.

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