Presidential candidates have proposed changing the U.S. Constitution: What would it mean?
How might the country change under the next president — not just through laws or policies, but in the actual Constitution itself? The congressional record reveals possible answers to that question.
Three current senators and one former senator remain in the presidential race: Marco Rubio (R-FL), Ted Cruz (R-TX), Bernie Sanders (I-VT), and Hillary Clinton (D-NY; 2001–2009). The constitutional amendment proposals they sponsored and cosponsored during their Senate tenures reveal windows into four possible futures for America.
Bernie Sanders
Sanders has been the sponsor of three constitutional amendment proposals since arriving in the Senate in 2007 — all of which aim to accomplish the same goal: overturn the 2010 Supreme Court decision Citizens United v. FEC. That ruling struck down the limits on political expenditures by corporations and unions, ushering in the rise of Super PACs. In Sanders’ view, this ruling allows millionaires and billionaires to buy elections.
The amendments would establish a new system of public financing of elections, stronger disclosure rules, and limitations on both political contributions and political expenditures, according to the Congressional Research Service. Sanders introduced it most recently this session as S. J. Res. 4, where it has no cosponsors and has been referred to the Senate Judiciary Committee. Sanders had previously introduced it in 2013 and 2011, and he is a cosponsor of three other similar constitutional amendment proposals introduced by Sen. Tom Udall (D-NM). Udall’s proposals’ have been the main vehicles for Senate Democrats’ attempts on the issue, with 39 cosponsors for the current proposal, no Republicans among them.
The fourth amendment proposal Sanders cosponsored was the 2007 S.J. Res. 10 introduced by former Sen. Ted Kennedy (D-MA), which would have made women equal to men under the law. It’s a second shot at the Equal Rights Amendment that passed both the House and Senate in 1972 but fell three states short of the 38 state legislature ratifications required.
Ted Cruz
Cruz has been the sponsor of one constitutional amendment proposal since joining the Senate in 2013. S.J. Res. 12 would give both the federal government and the states “the power to define marriage as limited to the union of one man and one woman.” The resolution was introduced in April 2015, the same week as oral arguments in the Supreme Court case Obergefell v. Hodges — which, when decided two months later in June, required the states to issue same-sex marriage licenses.
Cruz, who opposes same-sex marriage, called the decision “judicial activism, plain and simple” and “lawless” in a National Review op-ed. Cruz’s proposal currently has no cosponsors, although many other Republicans have expressed similar sentiments.
Cruz has also signed on as a cosponsor to four constitutional amendment proposals during his time in the Senate, two during this session. S.J. Res. 1, introduced by Sen. David Vitter (R-LA), would limit members of the Senate to two terms (totaling 12 years) and members of the House of Representatives to three terms (totaling six years). That bill has 14 cosponsors, all Republicans.
S.J. Res. 6, introduced by Sen. Orrin Hatch (R-UT), would require a federal balanced budget. With 53 cosponsors, all Republican, more than half the Senate has now signed on, though it has yet to receive a vote since its February 2015 introduction. (The federal deficit is expected to rise this year to $544 billion and hasn’t had a yearly surplus since 2001. Cruz’s campaign has introduced a budget that they claim through spending cuts would be balanced within eight years.)
The other two constitutional amendment proposals Cruz cosponsored were also about term limits and a balanced budget in the previous session.
Marco Rubio
Since joining the Senate in 2011, Rubio has introduced one constitutional amendment proposal. S.J. Res. 16, introduced in June 2013, would “limit the power of Congress to impose a tax on a failure to purchase goods or services.” This was in response to the Supreme Court’s 2012 decision National Federation of Independent Businesses v. Sebelius, better known as the decision which upheld the constitutionality of Obamacare — — in particular its tax on people who don’t purchase health insurance.
Rubio explained his “Right to refuse” amendment by saying, “We should put our faith in the American people to decide what goods and services they want to buy, not have Congress dictate it and have the IRS empowered to harass Americans to make sure they do it.” It attracted eight cosponsors, all Republican, and never received a vote. Rubio, though still opposed to the “individual mandate” portion of Obamacare, has not introduced a similar amendment so far this session of Congress.
Just like Cruz, Rubio has cosponsored several proposals during the past three sessions that would mandate a federal balanced budget and congressional term limits. In addition, last session Rubio cosponsored S.J. Res. 17, introduced by Sen. Orrin Hatch (R-UT), which would prevent burning or desecration of the American flag. It attracted 23 cosponsors, all Republicans, but never received a vote.
And in 2012 Rubio cosponsored S.J. Res. 42, also known as the Parental Rights Amendment, introduced by then-Sen. Jim DeMint (R-SC). It says that “the liberty of parents to direct the upbringing, education, and care of their children is a fundamental right” and that neither the federal government nor the states can infringe upon this right unless it’s a “governmental interest of the highest order.” It attracted 12 cosponsors, all Republicans, but never received a vote.
Hillary Clinton
The Democratic front-runner spent eight years in the Senate, from 2001 to 2009, but never introduced a constitutional amendment proposal. She cosponsored three, all on the same subject: Ted Kennedy’s 2001, 2003, and 2007 attempts to revive the Equal Rights Amendment granting women full equality under the law. (As mentioned above, Sanders cosponsored the 2007 version, but was not in the Senate for the previous two.)
During her presidential campaign, though, Clinton has publicly called for a constitutional amendment overturning Citizens United and regulating campaign finance. It does not appear she has remarked on the specifics of the amendment proposal from Sanders, her chief rival for the nomination.
In 2006 Clinton cast a key vote against a flag burning amendment, similar to the version Rubio would cosponsor a few years later. The 2006 Senate measure fell short by one vote after it had already passed the House. However, she did advocate at the time banning flag burning or desecration via legislation, rather than by constitutional amendment.
Difficulty in passing a constitutional amendment
Every Member of Congress introduces bills, but a bill must be legal under the Constitution. Proposing changes to the Constitution itself would be far more fundamental, altering the very framework that the country operates upon. Counting the 10 amendments in the Bill of Rights, since the nation’s inception there have been just 27 amendments approved — the last in 1992.
The main process for approving an amendment proves a high hurdle: It must be introduced in Congress as a joint resolution and then pass two-thirds of the House, two-thirds of the Senate, and be approved by three-quarters of state legislatures (38 of the 50). (There’s an obscure alternate method, calling a Constitutional Convention, but this has never been successfully used.) Perhaps surprisingly, the president has no official role in the constitutional amendment process, which does not require a presidential signature, though a president could certainly influence the process from the bully pulpit.
Successfully accomplishing all three of these steps proved difficult even during the most bipartisan eras in American history — the 27 successful amendments were out of more than 11,000 amendments proposed since 1789.
This post was written by GovTrack Insider staff writer Jesse Rifkin.
