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Constitution Mentions in Round Two of the Democratic Debates—Explained

August 9, 2019 by Jackie McDermott

 

Twenty Democratic presidential candidates took the stage for the second round of primary debates in Detroit, Michigan, last week.

Looking to separate themselves from their peers in a field that’s been slow to winnow out, the candidates discussed their policies, and some touted their governing experience—but how many of them mentioned the document they will swear an oath to if they get the job, the Constitution? Here’s the complete list of Constitution mentions in the second round of Democratic debates—explained.

The First Amendment and Campaign Spending

In night one, several candidates continued the heated discussion of Citizens United begun in the previous round of debates back in June.

This time, South Bend, Indiana, Mayor Pete Buttigieg put his opinion about Citizens United bluntly.

“Of course we need to get money out of politics,” he said. Buttigieg suggested “amend[ing] the Constitution if necessary to clear up Citizens United .”

In the 2010 Supreme Court decision Citizens United v. Federal Election Commission, a five-justice majority held that political spending is protected speech under the First Amendment. The Court ruled that while corporations or unions may not donate directly to a campaign, they may spend as much money as they want to support or denounce individual candidates through other means like advertisements. Some Democratic candidates have criticized Citizens United as having led to a surge in corporate spending in politics and the rise of powerful political action committees (“PACs”) that unleash avalanches of negative attack ads.  

Buttigieg continued, “Does anybody really think we’re going to overtake Citizens United without Constitutional action? This is a country that once changed its Constitution so you couldn’t drink and then changed it back because we changed our minds about that.”

Buttigieg was, of course, referring to Prohibition, the nationwide ban on “intoxicating liquors” implemented by the 18th Amendment and later repealed by the 21st Amendment

Author Marianne Williamson echoed Buttigieg’s sentiments, accusing her fellow candidates of being part of the problem for having “taken tens of thousands, in some cases hundreds of thousands of dollars from these same corporate donors.”

Williamson, however, proposed a different solution: passing either a Constitutional amendment or legislation that establishes public funding for federal campaigns. In Norway, for example, government subsidy provides political parties with the majority of their funding, rather than corporations.

In the United States, to implement such a system via constitutional amendment, the process laid out by Article V requires that two-thirds of both houses of Congress propose the amendment, or that the amendment arises from a convention called for by two-thirds of state legislatures. The amendment must then be ratified by legislatures or conventions in three-fourths of the states. The most recent constitutional amendment, the 27th, was ratified in 1992.

Second Amendment

In that same answer, Williamson also referred to the influence that money in politics allows interest groups to wield, foreshadowing an issue currently in the news.

“The issue of gun safety, of course,” she said, “is that the NRA has us in a chokehold.”

In light of the tragic recent shootings in El Paso, Texas, and Dayton, Ohio, Williamson’s point and other debates related to the Second Amendment are likely to come up again in the next round of debates.

The Electoral College

In the same answer in which he addressed money in politics, Buttigieg suggested that we “end the Electoral College.”

According to his campaign site, Buttigieg advocates for ending the Electoral College, which is outlined in Article II, Section 1, Clause 3, through a constitutional amendment. But, until such an amendment is passed, Buttigieg hopes states will sign on to the National Popular Vote Interstate Compact. The compact currently consists of 15 states and the District of Columbia who have agreed to award their electoral votes to the candidate who wins the national popular vote, rather than just the popular vote in their state. The NPVIC has sparked constitutional debate, as some argue that the compact violates the Constitution by effectively amending it and going against the Founders’ vision of our electoral system, without formally following proper amendment procedures.

Right to Abortion

In night two of the debates, Vice President Biden outlined his pro-choice stance, diving into an ongoing constitutional debate.

“I support a woman’s right to choose,” he said. “I support it. It’s a constitutional right. I’ve supported it and I will continue to support it. And I will, in fact, move as president to see to [it] that the congress legislates that that is the law as well.”

The former Vice President was responding to California Senator Kamala Harris, who criticized him for having previously supported the Hyde Amendment. The Hyde Amendment is a measure that blocks federal Medicaid funding for abortion services unless the woman’s life is in danger or the pregnancy resulted from rape or incest. It has been in effect since 1976. States can choose to use their share of Medicaid funds to cover abortions, but most do not.

The Supreme Court upheld the Hyde Amendment in Harris v. McRae (1980), holding that a women’s right to have an abortion as outlined in Roe v. Wade (1973) and later clarified in Planned Parenthood v. Casey (1992) did not carry with it “a constitutional entitlement to the financial resources” to carry out the choice to have an abortion, and that states participating in Medicaid were not obligated to fund medically necessary abortions through Medicaid.

Given that numerous states have passed a wave of restrictive anti-abortion laws so far this year, this issue will almost certainly continue to be a central one in the Democratic primary and in the general election.

Impeachment

Also in night two, New Jersey Senator Cory Booker employed the Constitution in going on the offensive against President Trump.

Making reference to the President’s behavior as detailed in the Mueller report, Booker said that Trump is “acting like an authoritarian against the actual Constitution that he swore an oath to uphold.”

He then asserted that Congress should “start impeachment proceedings immediately…” Referring to his own constitutional responsibilities as a senator, he added, “We swore an oath to uphold the Constitution. The politics of this be damned.”

The Constitution’s Impeachment Clause requires that the House pass articles of impeachment against the President and that the Senate convict him before he can be removed from office. The President can be impeached for “high Crimes and Misdemeanors”—an open-ended phrase which has sparked much constitutional debate.

The Preamble

Rep. Tulsi Gabbard evoked the spirit of the Constitution and quoted the Preamble in her remarks on night two.

“I’ll fight for our rights and freedoms of all Americans upholding these principles in our constitution upon which our country was founded,” she said. “Fighting for justice and equality for all. Fighting for every single American, regardless of race or religion as we strive towards that more perfect union.”

What’s next?

The next round of debates will be held September 12 and 13 in Houston, Texas, and candidates are already jockeying to make the cut. The deadline to qualify is August 28. A candidate must have at least two percent support in four Democratic National Committee-approved polls, and receive donations from at least 130,000 unique donors, with at least 400 donations from at least 20 states, to qualify for the debates, which will be broadcast live on ABC and Univision.

Jackie McDermott is Constitutional Content Coordinator at the National Constitution Center.

 

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