When the Supreme Court is this wrong, it’s time to overrule them

June 2, 2015
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Police form a line after arresting demonstrators on the steps of the U.S. Supreme Court, on the anniversary of the Citizens United decision, in Washington, January 20, 2012. REUTERS/Jonathan Ernst

Surveys show that a large majority of American citizens across the political spectrum oppose the U.S. Supreme Court’s Citizens United decision that opened the door to unlimited political spending by global corporations and powerful unions. Yet when asked about the prospect of passing a constitutional amendment to reverse the decision, too many people argue that it would be “too hard,” even “impossible.”

This argument lacks historical perspective. Every step on the path to fulfill the promise of the American Revolution was “too hard,” but Americans did it anyway. Hard, yes; yet constitutional amendments have come in waves during times of challenge — and Supreme Court obstinacy — much like our own.

The Bill of Rights and the post-Civil War amendments may be the most well-known examples, but this pattern has recurred. A generation after the Civil War renewed the promise of American equality and democracy, for example, the Supreme Court began elevating money to a privileged place in the Constitution. It struck down basic public-interest laws, including the minimum wage, worker safety, the federal income tax and even child labor laws.

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The U.S. Supreme Court building in Washington, May 20, 2009. REUTERS/Molly Riley

The American public took matters into their own hands during the Progressive era at the turn of the 20th century. With the 16th amendment in 1913, Americans reclaimed the power to levy a progressive income tax, without which many of President Franklin D. Roosevelt’s New Deal social programs would not have been possible.

The 17th amendment that same year provided for popular election of U.S. senators. This replaced the old system of election by state legislatures, in which, according to the New York Times, a millionaire, either by outright bribery or contributions to a party’s campaign coffers, could buy a Senate seat “just as he would buy an opera box, or a yacht or any other luxury in which he could afford to indulge himself.” Finally, with the ratification of the 19th amendment in 1920, women gained the right to vote after a struggle that had lasted for more than half a century.

Four decades later, two additional constitutional amendments removed further barriers to political equality. The 24th amendment in 1964 protected the right of all Americans to vote in federal elections, regardless of the ability to pay a poll tax. President Lyndon B. Johnson hailed “the triumph of liberty over restriction, declaring “there can be no one too poor to vote.” The 26th amendment in 1971 reduced the voting age from 21 to 18, which ensured that young adults eligible to serve in the armed forces were able to vote.

Each of these fights required hard work, tough challenges and resilience. This is as it should be. Constitutional amendments are warranted only by what James Madison called “extraordinary occasions.” That is why enacting and ratifying an amendment to the U.S. Constitution is no easy matter.

The situation we face today with regard to campaign finance is one of those “extraordinary occasions.” Overwhelming political spending by a relative handful of organizations and extremely wealthy people is marginalizing the voices and participation of most Americans. In the 2012 presidential election, a few dozen super-PAC donors exceeded all the contributions of $200 or less from the nearly four million donors to the Romney and Obama campaigns combined.

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Credit: MATT MAHURIN

The 2014 midterm elections brought even greater concentration of big spenders. Indeed, virtually all political spending now comes from far less than 1 percent of Americans, and increasingly from global corporations using “dark money” entities to obscure the source.

The result of such unbalanced concentrated power in the U.S. system of government is exactly as Madison and other founding fathers feared: failure of effective republican self-government due to powerful factions and corruption.

The Supreme Court that issued the Citizens United decision will not correct itself. Over the past five years, the sharply divided court has only expanded the ruling. In a series of decisions, it has invalidated traditional powers of the states, striking down longstanding anticorruption laws in Montana and nullifying new approaches to strengthen voter-funded elections in Arizona and Maine. In the 2014 McCutcheon decision, the court struck down a limit as high as $123,000 on total contributions to candidates for Congress. In Hobby Lobby and other recent decisions, courts are empowering corporations to seek even more exemptions from laws based on ever-broadening theories of corporate rights, including speech, religion and equal protection as “persons.”

To hope that the current court will fix things is folly. That is why the 28th amendment is necessary to overturn Citizens United, just as Americans have used the amendment process to overturn the Supreme Court six times before.

The 28th amendment would restore the power of Americans to enact reasonable election spending laws that protect the political equality of all. Specifically, the Democracy For All Amendment, which more than 165 senators and representatives have introduced, restores the authority of Congress and the states to enact election spending laws and to distinguish between human beings and corporations in doing so.

Five years after Citizens United, it is time to accept the historical gravity of our situation. It is time for Americans of all political viewpoints to come together to win the 28th amendment — and to renew U.S. democracy again.

51 comments

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The Democracy for All amendment gives the power to Congress to decide what is and is not, an artificial entity aka a corporation. This is dangerous. Don’t use the word “may,” use the word “shall.”

Corporations, unions, nonprofits are not born. They do not have inalienable rights. Just state that only human beings have constitutional rights. I hope there will not be an attempt to shelter the Democratic funding from nonprofits and unions. This would totally undermine the amendment effort.

From the Democracy for All text…
“Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

Corporations are not people. Money is not speech.
http://movetoamend.org/wethepeopleamendm ent

Posted by WisconsinBrad | Report as abusive

I strongly agree! Common sense tells us all that we can’t simply allow the rich powerful corporations to influence Congress with their huge contributions, but then we balk at trying to use the Constitutional system of amendment that we’re blessed with.

This is one of those “extraordinary occasions” that the author reminds us that Madison spoke of.

Posted by LetBalanceCome | Report as abusive

Have any of your people actually read Citizens United?

It’s a case about censorship. It’s a case about the first amendment. A non-profit organization published a piece of political advocacy. The government tried to shut them up. The government lost.

If only natural born persons have the right to free speech, the natural consequences is that only the RICH will be able to afford to speak. Citizens United was about a group of individuals pooling their resources in the form of a non-profit organization so that their speech could be publicized at a level that would gain them widespread attention. If we say that’s not allowed and only Individuals can do that, then only individuals with means will be able to so publicize their speech. It’s madness.

I don’t understand you people at all.

Posted by EndlessIke | Report as abusive

Many of the same people who support the CU decision are also on the record agitating against the results of money in politics, seemingly without irony and unencumbered by any awareness of the link between the two. An educated populace would go a long way to preventing such travesties.

Posted by LucieLu | Report as abusive

“If corporations are people, when do we get to execute one?” -Riot Legal Services

Posted by Solidar | Report as abusive

Pledge to give the power back to the people; by voting in every election and never voting for an incumbent again. Absolute power corrupts absolutely.

CHANGE.org

http://tinyurl.com/p8ctgco

Posted by SlickBasilisk | Report as abusive

Starting an article about constitutional law saying “large majority of American citizens” makes you sound really stupid. What do you think is the difference between constitutional law and ordinary law?

I’m sorry to put this to you, but we have the Constitution to protect liberty from the oppression of the majority.

Posted by MMister | Report as abusive

Endlessike,

That is an amusing take!

Seriously?

Posted by Flash1022 | Report as abusive

EndlessIke is engaging in the usual conservative wishful thinking.

Make no mistake. This was a case about 3rd party (laundering) political expenditures. It was a case about overturning McCain-Feingold. The court had no problem acknowledging that. So why does EndlessIke? Because wishful thinking.

Posted by Solidar | Report as abusive

The 16th and 17th Amendments were disastrous for the country.

Posted by BBA24 | Report as abusive

The alternative to peaceful change of the status quo will be either acceptance or violent change.

Our elected representatives need to respond to the will of the majority of the people in this country and reverse Citizens United now or we, the people, need to “throw the bums out” next year because the alternative is unacceptable.

Posted by SueZbell | Report as abusive

For more on amending the Constitution, see Fixing Our Broken Democracy at: https://www.youtube.com/watch?v=SCxLwCpJ 2HI

Posted by Enstein | Report as abusive

I would like to see any new Amendment include very specific language such as: “A person is defined as a single human being. No group, legal entity or anything other than a human being is a person.”

Posted by LVogt | Report as abusive

Agree with WisonsinBrad! The Move to Amend language is much more powerful and effective.

Posted by SkipMendler | Report as abusive

The uber rich silently ganged up on American citizens and taxpayers and rammed through the Citizen’s United fabrication. We are continuously being distracted by “BE AFRAID” propaganda and money problems. Yes, we need a constitutional amendment to stop the damage richy rich’s and citizens united misnomer are doing to our country. In my 70’s, I have never endorsed any constitutional amendment but this situation is what amendments should do in the history of constitutional government. Turning our elections into a mockery is a terrible insult and must be stopped.

Posted by JudiGale | Report as abusive

Also, did you know that the elections following Citizens United have had the lowest re-election rates for incumbents? Maybe that’s coincidence, but I could certainly tell a story where outside money is able to come in and reduce the fundraising advantage of an incumbent.

Isn’t that a good thing?

Posted by EndlessIke | Report as abusive

The ACLU generally supports the Citizens United decision. It’s a free speech issue.

Posted by EndlessIke | Report as abusive

“The American public took matters into their own hands during the Progressive era at the turn of the 20th century. With the 16th amendment in 1913, Americans reclaimed the power to levy a progressive income tax, without which many of President Franklin D. Roosevelt’s New Deal social programs would not have been possible.” This is not a good argument for anything. If someone advocates this, then I am pretty sure I am not in favor of anything they are promoting.

Posted by Tarheel72 | Report as abusive

Absolutely agree, excellent editorial, now where is the main stream media on this? Hiding behind their corporate sponsors. If we can’t get this passed, democracy is dead.

Posted by anotherfakename | Report as abusive

Didn’t see anything about the welfare crowd getting their $1 Trillion a year in means tested freebies. That’s a lot of people being bought off by the liberals, who do you think they are going to vote for?

Posted by TaxedMore | Report as abusive

It doesn’t get any more absurd than calling a corporation a person. Human beings are persons, corporations are artificial constructs. It is a sign of the permanent decline of the American tribe that gobbledygook is passed by the highest court in the land.

Posted by tribeUS | Report as abusive

Agree totally. Lets at least pretend we have a democracy. And a good start would be to agree that people are people, but rocks, cloud formations, and corporations are not.

Posted by steveinpaonia | Report as abusive

Both sides can spend the money so what difference does it make? It is a good ruling.

Posted by szore88 | Report as abusive

Endlessike,

The re-election issue has more to do with gerrymandering and the tea party than CU.

Posted by Flash1022 | Report as abusive

TaxedMore,

Yes, and businesses and the wealthy are making out in triples what the poor are receiving in tax reductions, subsidies, and deductions.

I will make a devils bargain with you to end the EITC and raise the hourly wage to $50/hr.

Posted by Flash1022 | Report as abusive

“Indeed, virtually all political spending now comes from far less than 1 percent of Americans, and increasingly from global corporations …..The result of such unbalanced concentrated power in the U.S. system of government is exactly as Madison and other founding fathers feared: failure of effective republican self-government due to powerful factions and corruption. “
The “failure”, if there is one, is due to the other 99 “percent of Americans” not participating in that messy, excruciating, and seemingly eternal process known as electoral politics. The United States is a democracy – “vox populi, vox dei”. If the populi don’t wish to vox, their silence is their choice. And if the voters are swayed by too often idiotic and misleading campaign advertisements, sound bites, smearings, and outright lies, again, their reasons are their choice.

Posted by oldnassau | Report as abusive

Whatever.

All the supreme court decision did, was to make explicit what has already been going on since AT LEAST Andrew Jackson, if not earlier. You people and your starry-eyed naivety. It’s kind of cute and funny, sometimes. But mostly, its ridiculous.

Posted by Greg_Gauthier | Report as abusive

Here is the most powerful and complete Amendment proposal. Section 2 is adopted in part by the Sanders’ campaign. It would eliminate campaign and party donations by all organizations, Left, Right and Center, eliminate the control the wealthy have on our political system and reduce the advantage of the wealthy in running for office. It would establish a Federal right to vote which you do not currently have!

The Renew Democracy Amendment

1. The right of the individual qualified citizen voter to participate in and directly elect all officeholders by popular vote in all pertinent local, state, and federal elections shall not be denied or abridged and the right to vote is limited to individuals.

2. The right to contribute to political campaigns and political parties is held solely by individual citizens either through direct contributions and or a voter authorized public campaign funding system.

3. Political campaign and political party contributions shall not exceed an amount reasonably affordable by the average American.

4. The rights of all groups, associations and organizations to other political speech may be regulated by Congress but only as to volume and not otherwise lawful content and only to protect the right of the individual voter’s voice to be heard.

5. The manner and course of lobbying and petitioning of federal, state, and local government officials by all groups and organizations and those who represent them may be regulated by Congress.

Visit Renew Democracy, Voter Bill of Rights

Posted by VBOR | Report as abusive

Here is the most powerful and complete Amendment proposal. Section 2 is adopted in part by the Sanders’ campaign. It would eliminate campaign and party donations by all organizations, Left, Right and Center, eliminate the control the wealthy have on our political system and reduce the advantage of the wealthy in running for office. It would establish a Federal right to vote which you do not currently have!

The Renew Democracy Amendment proposal, Voter Bill of Rights.

1. The right of the individual qualified citizen voter to participate in and directly elect all officeholders by popular vote in all pertinent local, state, and federal elections shall not be denied or abridged and the right to vote is limited to individuals.

2. The right to contribute to political campaigns and political parties is held solely by individual citizens either through direct contributions and or a voter authorized public campaign funding system.

3. Political campaign and political party contributions shall not exceed an amount reasonably affordable by the average American.

4. The rights of all groups, associations and organizations to other political speech may be regulated by Congress but only as to volume and not otherwise lawful content and only to protect the right of the individual voter’s voice to be heard.

5. The manner and course of lobbying and petitioning of federal, state, and local government officials by all groups and organizations and those who represent them may be regulated by Congress.

Posted by VBOR | Report as abusive

Eligibility to make political donations should be limited to individuals eligible to vote for the particular candidate or measure.

Posted by camd | Report as abusive

Count me in!!!!!!!!!!!!!!!!!

Posted by act1 | Report as abusive

If money is speech, then why can’t you slip some to a judge during a trial? Just…. two folks talking right?

Posted by Solidar | Report as abusive

This country was not founded as a democracy but as a CONSTITUTIONAL REPUBLIC. In fact, John Adams and Alexis de Tocqueville both wrote of the “tyranny of the majority”. The Constitution of the United States of America was constructed to protect the enumerated rights of the people and limit the powers granted to government.

Be careful what you ask for, because you don’t really want a democracy. Under a democracy, your “rights” can be removed by popular vote any time your beliefs are considered to be unpopular.

Posted by dkmatthews | Report as abusive

All you “People” crying about Democracy in America are idiots. We live in a Constitutional Republic. It was designed to PROTECT the minority FROM the majority. Democracy is NOT what you live in. It’s what we need to be fighting AGAINST. When 50.1% of the people can tell the other 49.9% what to do, then you have gone down that road of Mob Rules.

Posted by JamesJeansonne | Report as abusive

Senator Kirk took over $650,000 from AIPAC. Enough said. Check just how much he supports Israel.

Posted by Lyn4U | Report as abusive

RE Citizens United-Its amazing the liberal backlash which allows so called non profit companies to contribute and publish the same things any UNIION can do. How Unfair. Unions are major contributors to the dem party and get to run phone banks, publish flyers for anyone unning. The members do NOT have any say, its strictly up to the top brass ( such as Trumka, et al )

Allowing companies to do the same thing seems to be unfair ??

Heavens , they may decide to support a republican- and we cannot allow that

Posted by S.PUBLIUS | Report as abusive

I’ll bet the old soviet union had all sorts of laws like this. and I’m sure the democrats would love a limit on corporate contributions. unless of course, you also put a limit on Union contributions. that’s where they get their big money.

Posted by stephenwills | Report as abusive

The amendment must include AT LEAST
1.Money is not speech
2.Corporations are not citizens of the USA in any sense of the term “citizens”.

Posted by handyhealer | Report as abusive

The problem is trusting congress to do the will of the people. They can’t be trusted. Those are the folks the lobbyists are buying.
We can see the results of the wrong done by “Citizens United” and other voting restrictions set forth by the Supremes…There MUST be a way to reverses these travesties in spite of the “paid for” gate guards. The Republicans can fix this tomorrow by passing a new law that dilutes and deletes this mess.

Posted by EdBotsko | Report as abusive

Doris Kearns Goodwin and Jeff Clements sound like committed leftists.
Corporations make no political contributions in North Korea, maybe Doris and Jeff should move.

Posted by Clarkmag | Report as abusive

Sounds like someone isn’t happy with the midterm results

Posted by bajaleo | Report as abusive

Well I guess the Supreme Court is not the Supreme Court any more, Doris Kearns Goodwin and Jeff Clements are the new Supremes and I am sure we can count them on doing a better job or maybe if we need new laws or better interpretations of new laws we can get that from Congress. What am I thinking? we have Doris Kearns Goodwin and Jeff Clements for that job.

Posted by Andrew10001 | Report as abusive

Most of the complainers are part of the problem. They won’t elect candidates who don’t have the money for an effective campaign. Candidates could build websites for less than twenty dollars and get their message out, but most voters won’t visit the site to learn where the candidate stands. They go by whatever their TV spoon-feeds them and then they try to get Congress to control what their TV spoon-feeds them.

Posted by SomebodySmart | Report as abusive

@Ed Botsko:

“The problem is trusting congress to do the will of the people.”

No, there is no such thing as the will of the people. On virtually every issue, the people are divided. If the will of the majority is to violate the unalienable rights of the outvoted minority, Congress must refrain from doing so.

Posted by SomebodySmart | Report as abusive

Jury duty involves promising to be fair, bowing out if you’re biased, and listening carefully to both sides. Voting involves none of this and they vote away other persons’ freedoms and money, and then they whine like a bunch of crybabies every time a poor, defenseless cop chooses to get himself gunned down trying to enforce unjust laws. Defend liberty with ballots if you don’t want rebels to defend liberty with bullets.

Posted by SomebodySmart | Report as abusive

If a union derives its funds from a employee’s dues, which is a small portion of the employee’s wages how can a union be equated with the employer that is able to pay its executives millions of dollars a year for their work and still make a profit for stock holders. The amount of money a union can inject into the political process has to be a fraction of what a company can.
This SCOTUS is the result of installing supreme court justices that were picked for their political beliefs over all else. Its a low point at best in the history of the court if not a marker of the decline of our country at the worst. The butterfly ballot effect in action.

Posted by KrustyKola | Report as abusive

“without which many of President Franklin D. Roosevelt’s New Deal social programs would not have been possible.”

More is the pity.

Posted by evilhippo | Report as abusive

Nothing is impossible. Mahatma Gandhi brought down British Empire without firing a bullet, that Hitler, Lenin, Truman etc could not. It is time for show of cards for American critter by the Americans.

Posted by moriganti | Report as abusive

Hear hear!
Excellent article, here’s to hoping that the next president dares to push this issue!

Posted by JesusaurusRex | Report as abusive

The assumption here seems to be that spending Money equals success at the ballot box. Yes or No? so what about the Intelligence of the US Voter? just because a LOT of Money is being spent does that automatically mean that the “side” who spends the Most amount of Money automatically wins? where in This equation is the actual “Vote” of the voter calculated into this? One person, one vote. Vote early, Vote often.

Posted by supremeleader | Report as abusive

So, if corporations, unions, non-profit organizations, etc. are deemed by law to be “non-persons” with respect to campaign financing, what’s to prohibit a corporation, union, or non-profit organization from giving a real person the money, then that person contributes to a campaign? I don’t see how this amendment would change anything. There is ALWAYS a way around the obstacles, and the guys with the money know how to get around them quite efficiently.

Posted by atomicbear | Report as abusive