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HIVE TOPIC OPEN: May 25, 2012 - June 28, 2012

How Can We Fix the Constitution?

"Upon the People Alone"

How to end the corrupting influence of our domestic princes.

Benjamin Franklin
Benjamin Franklin

At the center of the original Constitution—the one our Framers drafted in Philadelphia, in 1787, before a not quite satisfied nation demanded that a Bill of Rights be added—lies an oddly crafted clause. Article I, section 9, cl. 8, provides:

No Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The inspiration for this clause is well known. Ambassadors in Europe, Ben Franklin most famously, had accepted gifts from the monarchs in the nations to which they were sent. A young, no doubt insecure, America was worried about the dependence such a practice might produce. None doubted the integrity of Franklin, or of diplomat Arthur Lee before him. None worried that there was a quid being given for some quo. But many did worry that such a practice unchecked might produce the wrong sorts of ties or allegiances. Or a desire to please the wrong master.

So the Framers flipped the default and made such gifts the exception. And by so doing, they revealed an important sensibility that we today systematically ignore. Their aim was to set the conditions under which good habits might develop. A constitution couldn’t police a man’s heart. It couldn’t force an ambassador to be true. But it could create an environment within which the wrong temptations could be avoided. And by so doing, it could set the conditions under which the right dependencies could be secured.

We today don’t have much of a problem with the improper influence of “Kings, Princes or foreign states.” American congressmen don’t retire to the French Riviera, or the Bulgarian Black Sea. Instead, the improper dependencies of today are all domestic. It is our domestic kings and princes who provide the temptations to corrupting allegiances. And not so much through any literal “present, Emolument, Office, or Title,” but certainly through a kind of “present, Emolument, Office, or Title”—namely the endless campaign support that they give to members of Congress during their time in office, and the plush retirement they enable through lobbying once the members leave.

The Constitution obviously doesn’t make these “presents” illegal. But if we took seriously the corruption the Framers were worried about, we would take more seriously the obvious risk these contributions create—to the independence, and integrity, of the institution of Congress.

The Framers meant Congress to be “dependent,” as Federalist 52 puts it, “upon the People alone.” It obviously is not. The only way that congressmen can secure their place in office is to secure an almost endless stream of campaign funding. That funding, however, comes not from “the People.” It comes from the domestic Princes. Only 0.26 percent of Americans give more than $200 in a congressional campaign; 0.05 percent give the maximum to any congressional candidate. Some 0.01 percent—the 1 percent of the 1 percent—give more than $10,000 in an election cycle. And as my colleague Paul Jorgensen has calculated, the 1 percent give 10 times the per capita contribution of the 99 percent. Congress is dependent upon that 1 percent. And “the 1 percent” is plainly not “the People.”

No one could deny this dependency. It is as obvious as the nose on Washington’s face. Yet as a culture, at least a legal or constitutional culture, we bend to ignore its significance. How could anyone actually believe that the risk to the independence of Ben Franklin created by the expectation of a snuff box from Louis XVI is even comparable to the risk to the independence of Congress created by its dependence upon the tiniest fraction of the 1 percent to fund its campaigns? The Constitution swats at gnats while we stand with studied obliviousness to Godzilla.

Declaring that “corporations are not persons” or that “money is not speech” would do nothing to fix this. Not even close. Nor would simply securing the power of Congress to limit (in a content neutral manner) contributions and independent expenditures, as Larry Tribe proposes (though his amendment should certainly be Section 2 of the amendment that I propose). The complete fix requires removing the competing dependence. And the only way to do this is through an amendment that requires that citizens—only citizens and all citizens—participate in the funding of campaigns.

This is the first section of an amendment that would do that (again, Section 2 should be Professor Tribe’s):

Section 1: For the purpose of securing the independence of the legislature, Congress shall:

(1)     provide vouchers to voters to fund federal elections;

(2)     limit contributions to federal candidates to $100.

These changes would eliminate the conflicting dependence that the current system of campaign funding creates. It would reinforce the Framers’ intended dependence “upon the People alone.” And it would do so without risking any other substantial First Amendment interests—for the current system is an obvious “corruption” of the Framers’ design, and there is no First Amendment interest in protecting corruption.

So long as campaigns cost money, Congress will be dependent upon its funders. The only way to assure that such dependence doesn’t corrupt dependence “upon the people alone” is to assure that “the People” are “the Funders.” We should follow the Framers’ instincts and complete their design—protecting against the corrupting influence of domestic Princes as well as foreign.

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