The Supreme Court’s 5-4 ruling in the Citizens United v. the Federal Election Commission case removed all restrictions on corporate spending on electioneering communications. The Court said that the First Amendment protected corporations’ speech. In other words, “corporations are people, my friend.” And, as long as the Supreme Court thinks that corporations are people, we will have no chance of having a political system that has more than a passing resemblance to a representative democracy. The ruling struck down provisions of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA). Specifically, it made it possible to run unlimited television advertisements in the 60-day window before an election. The result has been an immediate change in how our presidential elections are run. Super PACs are now spending more than the candidates in the Republican nominating process.
Can we agree that this a bad thing? Yes? Okay. So, what can be done about it? Passing laws isn’t going to help. They’ll just be struck down as unconstitutional.
Well, there are two things we can do. The first thing is to realize that the Citizens United case was narrowly decided. If we can replace, with a reasonable person, one of the five conservative Justices who ruled against the FEC, the Court will probably overturn itself. There would be a whole process to that involving the creation of a challenge to the prior ruling. But I’ll leave that to the lawyers. The bottom line is that reelecting Barack Obama will create a four-year window in which we might be able to change the composition of the Court from 5-4 conservative to 5-4 liberal. Reelecting Obama gives us a potential opportunity to fix the problem created by the Citizens United ruling. It’s only a potential opportunity because there is no guarantee that Obama will have a chance to replace one of the conservative members of the Court.
The second thing we can do is to amend the Constitution of the United States to make it legally permissible to regulate money in our elections in whatever way we see fit. That’s easy to say, but much harder to do. How does one amend the Constitution?
The procedure is spelled out in Article Five of the Constitution.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Let me clear this up a little. First, let’s get rid of the clutter at the end. The part about not allowing any amendments until 1808 is about slavery and taxes. The first clause of the Ninth Section of the First Article says:
The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
The fourth clause also imposes a limit on taxation. These clauses were the result of some intense negotiations led by South Carolina delegate John Rutledge. The history is very interesting, but it need not concern us here. This part of the Constitution has been superseded by the 13th and 16th Amendments.
What we are interested in is the first part about the two different ways we can amend the Constitution. Under the first provision, if we can convince two-thirds of both the U.S. Senate and the House of Representatives to agree to convene a convention for proposing amendments, and we can get them to pass our amendment by a two-thirds majority, it will go to the states legislatures. Then we will need three-quarters (or thirty-eight out of fifty) of our state legislatures to ratify the amendment. In every state except Nebraska, which has a unicameral legislature, passing the amendment will require both the lower and upper houses to agree. This first procedure is how all of our amendments have been passed, including the first ten, which are known collectively as the Bill of Rights.
The second provision has never been used. In this scenario, we would need to get the legislatures of two-thirds (not three-fourths) of the states to petition the Congress to convene a convention for the consideration of amendments. If we were successful, the process would be identical to the first scenario from that point forward. We would need two-thirds of both the Senate and the House of Representatives to approve our amendment, and then we would need three-fourths (or thirty-eight) of our states to ratify it.
One interesting side note belongs here. Amendments can come with time limits, although that has created some controversy. Our most recent amendment (the Twenty-Seventh) was sent to the states along with the Bill of Rights. The states didn’t get around to ratifying it until 1992. It obviously did not have a time limit. The Equal Rights Amendment, on the other hand, was sent to the states in 1972 with a seven-year deadline. The deadline was later extended to ten years. When less than 38 states had ratified the ERA by mid-1982, the bill expired. One thing to watch out for are efforts to put a timeline on our amendment. It will take time to build support for our efforts, and we don’t want to have to worry about stalling tactics killing our project.
I am going to suggest that the best way to successfully pass a constitutional amendment that will fix the problem of corporate financing of our elections, is to use the process that has never been used before. This is because of the uniqueness of this particular problem. Our Congress has been corrupted in a way that precludes it from being a leader in de-corrupting itself. With only a handful of temporary exceptions, every member of Congress has been elected. To get elected, they’ve successfully navigated a system that is absolutely awash with corporate money. They may not like the system, but they’ve mastered it. And they won’t willingly change a system that protects them and creates such a giant barrier to entry for potential competitors. We can build a grassroots army of citizens to put ever-increasing pressure on Congress to pass an amendment, but I can’t foresee a time in even the distant future when we’ll be able to convince 67% of both houses of Congress to do away with corporate dominance of our politics.
If we are going to have any chance of convincing Congress to act, we’re going to need two-thirds of the state legislatures to make the request on our behalf. In many ways, state politics are significantly more corrupt than federal politics. It costs less money to peddle influence and there is much less sunlight from the media and an inquisitive citizenry. But other factors work in our favor. The political parties are less polarized at the state and local level. The lower cost of creating influence works in our favor. We can afford to play. And many legislators are not career politicians. Many have full-time jobs. When it comes to corporate influence, many on the right don’t see it as something to protect because it advantages their side of the aisle. They see it as simple corruption.
I don’t think most rank-and-file Republicans and right-leaning independents have any investment at all in a system that is awash in corporate and labor union money. These are the people we need to identify and mobilize. And we need to do it all over the country on the local level. And that means we can’t make it about partisanship or class warfare. It has to be about good government. It has to be neighbors talking to neighbors.
It will take a long time. People should plan on it taking more than a decade, and perhaps two. But, if we can get one state legislature to pass it, we can move on to the second one, and the third. If Congress is ever presented with a petition from two-thirds of the states, they will be under tremendous pressure to act, especially considering what that accomplishment would imply about the organization of the movement that made it happen.
What else are we going to do? Sit around on our asses and watch this country go down the drain?
[In the interests of full disclosure, I am consulting with Democracy for America on issues that may be mentioned on this blog. While I will continue to express my own views and opinions, any articles that may present a conflict of interest will contain this disclosure.]
