Earlier Drafts

Version 1

1. Congress shall have the power and obligation to protect its own independence, and the independence of the Executive, by assuring, through citizen vouchers or public funding, that the financing of federal elections does not produce any actual or reasonably perceived appearance of dependence, except upon the People.
2. The Freedom of Speech and of the Press shall not be abridged by this Amendment, save that the First Amendment  to this Constitution shall not be construed to limit the power of the People to restrict any significant and disproportionate non-party financial influence during the last 60 days before an election, where such influence would reasonably draw into doubt the integrity or independence of any elected official.
3. Courts shall defer to factual judgments about an actual or reasonably perceived appearance of dependence, or the conditions under which a significant and disproportionate non-party financial influence would reasonably draw the integrity or independence of an official into doubt, when such judgments are made by independent, non-partisan commissions whose Members pledge not to enter elected office for a period of at least 10 years after service on the commission.

Notes

1. This section creates an obligation on Congress to assure that the elections of Congress and the Executive are funded in a way that preserves the independence of Members of Congress and the President. It does not mandate any particular mode of funding, but establishes a political obligation on Congress to support a system that does not create actual or reasonably perceived dependence by Members or the President upon any interest save the People.
2. This section clarifies and assures that both Congress and the states have the constitutional authority to create limits on expenditures during the 60 days preceding an election, bu t only where those expenditures are “significant and disproportionate,” and would reasonably be perceived to undermine the independence of any elected official. This provision does not grant any exception from the First Amendment for the purpose of prohibiting generally any class of speech, whether by persons or legally created entities or associations. In particular, it does not permit a ban of all independent expenditures by corporations. The provision instead simply secures the power to avoid expenditures which are “significant and disproportionate” and would draw the independence of an official into doubt. The “significant and disproportionate” test is drawn from the Supreme Court’s decision in Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009), and simply gives Congress and the states a means to assure the same institutional integrity that the Due Process Clause requires of the Courts.
3. This section creates a safe harbor for judgments made by independent commissions about whether a system for financing elections assures independence or whether a rule for avoiding significant and disproportionate expenditures is justified by concerns about integrity or independence. Courts, both federal and state, are directed to defer to the factual judgments of such commissions if they are (1) independent, (2) non-partisan, and (3) comprised of individuals who pledge not to enter elected politics for a period of at least 10 years. A commission is “independent” if it is adequately funded, and if its Members can be removed only for cause. It is “non-partisan” if no single party has a controlling vote on the commission.