Professional Documents
Culture Documents
INTRODUCTION
previously served as Assistant Attorney General & Chief of the Public Protection Bureau in
the Massachusetts Attorney General’s Office, and was a partner at Mintz Levin and in his own
firm in Boston. He serves on the Advisory Board of the Boston Lawyers Chapter of the
American Constitution Society. The author thanks American Promise’s Writing the 28th
Amendment program and the legal scholars, judges, elected officials, and thousands of citizens
who have participated. More information is available at
http://www.americanpromise.net/writing_the_28th_amendment.
2 Brian Boyle is Senior Law Fellow at American Promise. He was previously an attorney at
WilmerHale and a clerk at the Massachusetts Appeals Court. He currently runs his family-
owned insurance brokerage and serves as a volunteer in town government.
3 Secretary of the Commonwealth of Massachusetts, Summary of Question Two,
MASSACHUSETTS ELECTION STATISTICS, https://perma.cc/4JZ7-PPMH (The vote was 1,871,989
(71.4%) in favor and 751,447 (28.6%) against).
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process. This article briefly explains the need for an amendment and
discusses how the Citizens Commission is expected to advance the cause.
4 JAMES MADISON, Federalist No. 49, in 2 THE DEBATE ON THE CONSTITUTION 143 (Bernard
of our society in order to enhance the relative voice of others is wholly foreign to the First
Amendment.”).
8 First Nat'l Bank v. Bellotti, 435 U.S. 765, 786 (1978) (describing a Massachusetts criminal
statute that prohibited business corporations from making certain campaign contributions or
expenditures as a “prohibition . . . directed at speech itself”).
9 See id. at 789 (discounting the argument that “corporations are wealthy and powerful and
Through Buckley and its progeny, the Court has construed the principle
of political equality and anti-corruption checks and balances out of the First
Amendment, and this doctrinal turn has had major consequences for our
political system. We are lurching toward oligarchy: ordinary citizens have
little to no impact on policy,15 while billionaires are enshrining their views
10 Id. at 809.
11 Citizens United v. FEC, 558 U.S. 310, 364-366 (2010).
12 Id. at 350 (“Buckley rejected the premise that the Government has an interest ‘in
equalizing the relative ability of individuals and groups to influence the outcome of
elections’”(quoting Buckley, 424 U.S. at 48)).
13 Id. at 360-361.; See also Lawrence Lessig, Corrupt and Unequal, Both, 84 FORDHAM L. REV.
445 (2015) (arguing that the Framers’ conception of corruption would have included
institutional corruption through unequal influence and access).
14 See, e.g., Leo E. Strine, Jr., Corporate Power Ratchet: The Courts’ Role in Eroding “We the
People’s” Ability to Constrain Our Corporate Creations, 51 HARV. C.R.-C.L. L. REV. 423, 426 (2016)
(arguing that Citizens United “asserted that business corporations possess free speech rights
equal to those of human citizens” and “freed corporations to pour money directly into the
political process”); Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 HARV. L. REV.
143, 145 (2010) (“The outcome of Citizens United is best explained as representing a triumph of
the libertarian over the egalitarian vision of free speech”).
15 See Martin Gillens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest
Groups, and Average Citizens, 12(3) PERSPECTIVES ON POLITICS 572 (2014) (concluding that
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Secret Influence of America’s 100 Richest, THE GUARDIAN (Oct. 31, 2018), https://perma.cc/GJW9-
T8EK.
17 See American Promise, When Money is Speech, Who Does the Talking?,
https://perma.cc/PQ2T-GUY5 (last visited Jan. 25, 2019).
18 See, e.g., Zach Wamp, Congress Must Reform its Rigged ‘Dial for Dollars’ Fundrasing System,
THE HILL (May 30, 2017, 5:00 PM), https://perma.cc/XC5U-ULAU; Steve Israel, Confessions of a
Congressman, N.Y. TIMES (Jan. 8, 2016), https://perma.cc/MX2X-FUST.
19 McCutcheon v. Federal Election Commission, 572 U.S. 185, 237 (2014) (Breyer, J.,
dissenting).
20 See Christopher L. Eisgruber, CONSTITUTIONAL SELF-GOVERNMENT 3 (2001) (“The
Constitution [is] a practical device that launches and maintains a sophisticated set of
institutions which, in combination, are well-suited to implement self-government.”).
21 See Gordon S. Wood, THE RADICALISM OF THE AMERICAN REVOLUTION 518 (1992)
(“Equality was in fact the most radical and most powerful ideological force let loose in the
Revolution. Its appeal was far more potent than any of the revolutionaries realized. Once
invoked, the idea of equality could not be stopped, and it tore through American society and
culture with awesome power. It became what Herman Melville called ‘the great God absolute!
The centre and circumference of all democracy!’”).
22 See J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle
to Political Equality?, 82 COL. L. REV. 609, 609 (1982) (arguing that the Supreme Court has
created “an artificial opposition between liberty and equality”).
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23 See American Promise, Our Goal, https://perma.cc/ZMU2-USKG (last visited Jan. 25,
2019) (explaining the reasons for the proposed amendment and the strategy for achieving it).
24 See “Great and Extra Occasions”: Developing Guidelines for Constitutional Change 7 (The
Century Foundation Press, 1999) (proposing eight guidelines for constitutional amendments).
25 Id.
26 Id. (asking whether there are “significant practical or legal obstacles to the achievement
of the objectives of the proposed amendment by other means”); See also McCutcheon v.
Federal Election Commission, 572 U.S. 185 (2014) (holding aggregate campaign contribution
limits invalid under the First Amendment); American Tradition Partnership, Inc. v. Bullock,
567 U.S. 516 (2012) (holding that Citizens United applies to state campaign finance laws);
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011)
(invalidating the matching funds provision of Arizona’s public financing system).
27 American Promise now has over 200,000 citizen leaders working together in all 50 states.
Its members hold community events, write letters to the editor, meet with elected officials,
and stay informed through phone calls and an online network. See American Promise, Take
Action, https://perma.cc/LMT4-29XA (last visited Jan. 25, 2019).
28 Through its “Writing the 28th Amendment” program, American Promise is bringing
together constitutional scholars, law professors, elected officials, and civic leaders to
formulate specific language for the amendment and inform the American public. See
American Promise, Writing the 28th Amendment, https://perma.cc/U68F-Y8UX (last visited Jan.
25, 2019).
29 The Pledge Campaign secures candidates’ support for the 28 th Amendment and tracks
signatories in a database. See American Promise, About American Promise,
https://perma.cc/K356-YCYN (last visited Jan. 25, 2019).
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the “sovereignty of the people” as “the cause and the end of all things; everything rises out of
it and is absorbed back into it.”).
35 The following state officials will each make three appointments to the Citizens
Commission: the Governor, the Secretary of the Commonwealth, the Attorney General, the
Speaker of the House, and the President of the Senate. See American Promise, Initiative Petition
for a Law Relative to Establishing a Citizens Commission Concerning a Constitutional Amendment to
Secure Government of the People at § 3(a), https://perma.cc/S6QR-XYN3 (last visited Feb. 21,
2019).
36 2018 Mass. Acts ch. 322, available at https://perma.cc/276Q-9ADA.
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37 Id. § 1(c).
38 Id. § 3(b).
39 Id. § 3(f).
40 Id. § 3(e) (The 15 Commissioners must be appointed by May 1, 2019).
41 2018 Mass. Acts ch. 322, § 3(i).
42 Id. § 4(a)(iv).
43 Id. § 4(b)-(c).
44 Id. § 4(e).
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CONCLUSION