Citizens United prompted cries for a constitutional amendment. But how to amend?
American democracy is reaching a breaking point, from failed winner-take-all voting rules to blatant attempts to suppress voter turnout. The rising torrent of campaign spending by the 1% has triggered particular outrage.
Activists leapt into action after the Supreme Court’s January 2010 Citizens United decision, which not only overturned a century of precedent that barred corporate money in American elections, but also enshrined corporations as non-human entities that have the same constitutional rights as people.
Since Citizens United and other court rulings limit what can be done by statute, amending the constitution to overturn these rulings has become a major focus of activists. A coalition of advocacy groups was recently successful in pushing forward the Democracy For All Amendment, which would allow regulation of campaign spending, including a restoration of the ban on corporate money in elections. In September, the Senate voted 54 to 42 in favor, with Democrats in support and Republicans all opposed. Although that was short of the required two-thirds necessary for an amendment to pass, it represented the first time in decades that Senate Democrats have voted for constitutional change.
Some activists argue, however, that the proposed amendment doesn’t go far enough and are calling for action on measures like the People’s Rights Amendment, which takes on the doctrine of corporate constitutional rights. Others worry that amendment campaigns detract from efforts to win immediate federal and state statutory changes.
To explore differences in strategy, American University law professor Jamie Raskin and I spoke with leaders of three organizations that play central roles in the drive for constitutional action: Robert Weissman, president of Public Citizen; Kaitlin Sopoci-Belknap, national director of Move to Amend; and John Bonifaz, president of Free Speech For People.
What was the significance of the recent vote on the Democracy For All amendment?
Robert: It was historic. We went from four Senate sponsors in 2010 to 55 backing the measure today (one of whom couldn’t be there for the vote), spurred on by the fact of the system being so horribly corrupted, but also by public clamor for action. More than 550 cities and towns and 16 states have passed resolutions or equivalent measures calling for an amendment. We had more than 150 street demonstrations in a single day.
But as much organizing as we’ve done, it’s not been enough to force Republican members of Congress to break away from their leadership—even Republicans who are plainly opposed to the current campaign finance system and who almost certainly in their hearts do favor an amendment.
In this polarized environment, winning the necessary votes to amend the Constitution—a two-thirds vote in each house of Congress and the approval of three-quarters of state legislatures—will be challenging. What will it take?
Kaitlin: It’s going to take a movement. It’s not going to be led by people who are in office, or even establishment organizations that are working with people who are in office.
John: We must build a transpartisan movement that reflects how this is a deeply American issue that cuts across the political spectrum, that impacts the concerns of people whatever their party affiliation. We have more work to do on that front.
Robert: We need to force Republican legislators to be responsive to the grassroots demand from their own base. Polls show Republicans overwhelmingly hate Citizens United and the current campaign finance system.
With the right to vote under attack via voter ID laws and other measures, there’s also a proposed amendment, HJ Res 44, to put an explicit right to vote in the Constitution. Do you see this as part of your movement?
Kaitlin: We absolutely need a constitutional right to vote, [and it fits with] our core imperative: a movement to look at how to make government serve the people.
John: Yes. The right to vote includes the right to equal and meaningful participation in the entire election process, not just Election Day. Because candidates can’t be competitive without access to wealth, we have an effective “wealth primary” that excludes equal and meaningful participation by people without that access.
Also on the table is the People’s Rights Amendment, which regulates corporate personhood. Do you see value in combining all of the various amendments into a single big prodemocracy amendment?
Kaitlin: Yes. We’re very concerned that this will all get lumped into a campaign finance movement. Although Citizens United did involve campaign finance, it also dealt with corporate constitutional rights. We think the Constitution must be amended to unequivocally end corporate constitutional rights and money as speech, because these doctrines make meaningful democracy impossible. We’ve pledged not to sign our name to any proposal that doesn’t address these two points wholly and completely.
John: We support both the Democracy For All amendment and the People’s Rights Amendment. If the power of the movement pushes these amendments into one, that’s great, but not necessary: The history of constitutional amendments in this country has shown that there are often times more than one amendment that gets proposed and enacted in one era.
Robert: I don’t share Kaitlin’s fear that the energy will only get directed toward campaign finance, though I think that campaign finance demands urgent attention. But I do agree that what made Citizens United distinct from campaign finance issues is that it made the problem of corporate power central. The amendment solution has excited people in part because it’s a concrete way to take on the problem of corporate power, which feels so out of people’s control.
One argument for constitutional amendment drives is that they can become an impetus for other reforms. Do you see this movement leading to more immediate change?
John: Yes. The broader amendment movement is the overarching engine for a host of reforms—public funding of elections, greater disclosure, engaging the public, and tying reform to other important democracy movements such as voting rights, eliminating gerrymandering and fairer voting rules like proportional representation.
Kaitlin: We’re excited by community action to connect claims of corporate rights to relevant issues like fracking and corporate farming.
With our society’s huge disparities of wealth, rich people can always spend more money to influence public opinion—from Fox News to conservative think tanks. When an individual wants to release content that can be interpreted as attacking certain politicians, what’s to be regulated?
Robert: The Democracy For All Amendment would permit regulation of spending by billionaires as well as corporations, including in ways that go beyond the spending facilitated by Citizens United. It would permit, for example, the regulation of self-financed candidates. Do lines have to be drawn about what is permissible and what is not? Yes. Unless you have zero regulation, you have to have some kind of line-drawing to determine what’s electioneering and what’s not. We do this in the current system, even post-Citizens United. Most of those questions aren’t hard. Whether to regulate the core set of things affecting our election system—Sheldon Adelson’s ability to spend $90 million through super PACs—is not a hard question.
What will be your focus in the coming year?
John: One is action in redder states. Also, we will continue to challenge in court corporate claims to constitutional rights, like defending Vermont’s labeling law on GMOs against Monsanto and defending a St. Louis ballot initiative against Peabody Energy.
Robert: We need more organizing to succeed. The amendment organizing is helping propel other campaign finance-related campaigns, including efforts to win public financing and better disclosure—most importantly through an SEC ruling on corporate spending.
Kaitlin: We’re making this a litmus test for getting elected and bird-dogging candidates. If you don’t support ending corporate constitutional rights and money as speech, then we need other candidates to run. We must mobilize the public’s power and capacity to force action.