Calling For A Constitutional Amendment
Americans of all political and ideological stripes agree: moneyed interests have overwhelmed the political process. This trend has been decades in the making, however the Supreme Court unleashed a new element of corporate power in its landmark 2010 Citizens United v. FEC decision.[i] That decision and the subsequent cases that followed it have led to limitless and often undisclosed corporate and special interest spending in our elections, which continues to overwhelm the voices of average Americans.
Newly empowered to flood the airwaves with independent attack ads at will, corporate interests have more political power now than at any time in recent American history.
With over $7 billion spent on the 2012 federal elections alone, the problem’s only getting worse as political organizations adapt to a post-Citizens United world. The resulting reality is one in which Americans no longer have access to free and fair elections. Mitigation efforts can and must be enacted within this legal framework to ameliorate what the Supreme Court has wrought, yet America’s campaign finance system is in need of far more than just mitigation; the entire money in politics paradigm must be shifted.
That is why the American public and a growing number of public officials are calling for a constitutional amendment to overturn Citizens United and related cases to redefine the role of corporate power in the political sphere and place the election process where it belongs – in the hands of the people.
Why Amend The Constitution?
The Constitution is the supreme law of the land. So when the Supreme Court ruled in Citizens United that corporations have a First Amendment right to spend infinite sums from their corporate treasuries on independent expenditures in elections, the ruling not only struck down all federal and state laws that banned such corporate spending in elections, it also prohibited and continues to prohibit any legislative body anywhere from adopting such limits in the future. That is why in order to “undo” Citizens United, we must either amend the Constitution or change the composition of the Supreme Court.
But the problem is not just Citizens United. Based on a line of Supreme Court decisions, including Citizens United, the status quo is that Congress and the states are constitutionally prohibited from:
1) Issuing any quantitative limit on independent expenditures or on contributions to independent election spending entities made by corporations or by individuals.[ii]
The result: The super-wealthy can spend infinite sums to influence our elections. In the 2012 election cycle, “the top 32 Super PAC donors, giving an average of $9.9 million each, matched the $313.0 million that President Obama and Mitt Romney raised from all of their small donors combined—that’s at least 3.7 million people giving less than $200.”[iii] Such limitless spending is not limited to just presidential races; congressional, state and local elections are subject to this election environment as well.
2) Barring for-profit corporations from spending general treasury funds to independently influence elections[iv]
The result: Large corporations can independently spend without limit on elections. Since Citizens United, corporations have spent hundreds of millions of dollars on attack ads at the local, state and federal level, at times hiding that spending behind “dark money” groups like social welfare organizations and trade associations that under federal law and most state laws are not required to disclose their donors.
3) Setting caps on self-funded campaigns[v]
The result: Wealthy candidates can spend without limit on their own campaigns. Notably, 47% of members of the 112th Congress were millionaires, a status shared by only 1% of Americans.[vi]
4) Implementing a range of innovative election reform measures
The result: Congress and the states are restricted to operating within the Court’s flawed framework, and thus are unable to provide additional funds to publicly-financed candidates to compensate for spending by privately-funded opponents[vii]; issue content-neutral expenditure limits on candidate campaigns[viii]; struggle to enact time limits on fundraising[ix]; and pursue other measures that violate the defective holdings of Buckley v. Valeo and its progeny.[x]
If we are to uphold the democratic system set up by our Constitution, Congress and the states must have the constitutional authority to regulate campaign contributions and expenditures, and corporations must be prohibited from spending money in our elections.
Our constitutional design specifically provides for an amendment process, intended for use in extreme circumstances. This is one of them.
What Will It Take?
From a legal perspective, as established by Article V of the Constitution,[xi] a constitutional amendment has to be proposed either by a 2/3 vote of both houses of Congress, or else by a constitutional convention convened when the legislatures of 2/3 of the states so request. The amendment has to be ratified either by the legislatures of 3/4 of the states, or by conventions in 3/4 of the states, depending on which means of ratification Congress proposes. All of the existing amendments to the Constitution, of which there are now 27, were proposed by Congress, and all but one were ratified by state legislatures. The convention route has never been used for proposing an amendment, and was used only once for ratifying an amendment (the 21st, which eliminated Prohibition).
From an organizing perspective, a constitutional amendment to further social and democratic justice takes a people’s movement. In the 20th century, the amendment process institutionalized many of the practices we today take for granted – women’s suffrage, the advancement of civil rights, and the lowering of the voting age, among others. These movements were not successful overnight; nor did they end when their respective amendments were passed. Yet the amendment process provides movements with milestone moments of both judicial and cultural importance. Precedents are re-written, and progress is made tangible.
When signing the 24th Amendment that outlawed the Poll Tax, President Lyndon B. Johnson proclaimed, “A change in our Constitution is a serious event.” Johnson was right. Amending the Constitution is not to be done lightly, but the issue of corporate and special interest influence over our governing system is a serious problem. It is our hope that one day, a future president will echo another of Johnson’s remarks upon signing the amendment: that “the beneficiaries of this amendment are the people of this land.”[xii]
Passing Resolutions And Ballot Initiatives
Since the Citizens United decision, advocacy organizations and activists across the country have worked with public officials to call for a constitutional amendment to overturn the decision and related cases. To date, 16 states (containing over 95 million people) and over 500 cities/towns – including New York City, Los Angeles, Philadelphia, San Diego, Chicago, San Jose, Austin, San Francisco, Boston, Seattle, Washington DC, Baltimore, Portland, Albuquerque, Tucson, and Miami, among others – have passed resolutions, circulated sign-on letters, or placed the amendment strategy directly on the ballot to call on Congress to pass an amendment to send to the states for ratification.
Passing a local resolution or ballot initiative in your town, at your university, or in your community group is a powerful step that you can take to build the movement for an amendment. Passing resolutions and ballot initiatives helps raise awareness about the amendment strategy and instructs federal and state representatives to take up the cause of reform – or face the political consequences of not doing so. It is an essential part of our strategy.
Please review the materials below and send us an email at email@example.com with the subject line “Resolutions Materials Request,” if you would like to start a resolution effort:
– For tools on how to lead a resolution effort, please click here.
– PFAW’s sample amendment resolutions and ballot initiatives:
– To view where local resolutions have already passed, please click here.
The movement to amend the Constitution to overturn Citizens United and related cases continues to grow across the country and in the halls of Congress.
Currently, 14 amendment resolutions have been introduced in the US Congress in the 113th session, and 124 representatives (directly representing 87 million people) and 35 senators (representing over 150 million people) have endorsed the amendment strategy since the Citizens United decision came down in January 2010. Furthermore, President Barack Obama has repeatedly called for a constitutional amendment to overturn Citizens United and related cases.[xiii]
But in order to pass an amendment in Congress, we need more support. To view a list of which members of the 113th Congress endorse the amendment strategy and which ones are not yet on board, please click here. Although PFAW encourages lawmakers to sponsor any of the amendments that have been introduced in the 113th Congress, PFAW particularly endorses the following proposals:
Companion bills introduced by Senator Bernie Sanders [VT] and Representative Ted Deutch [FL-21]:
Companion bills introduced by Senator Tom Udall [NM] and Representative James P. McGovern [MA-2]:
Please reach out to your representative and senators and encourage them to sponsor these bills. If they are already in support of amending the Constitution to overturn Citizens United and related cases, please thank them for joining the movement and ask them to continue speaking out on the issue.
If you would like to schedule a lobbying meeting with your Senator or Representative at their district office, please email us at firstname.lastname@example.org with the subject line “Lobby Meeting,” and we’ll work with you to make your lobby visit as effective as possible.
Raising Awareness: Letters To The Editor And Social Media Tools
Writing a Letter To the Editor (LTE) for your local paper is an effective way of raising awareness on an issue. If you would like to write an LTE on the amendment strategy and need help with the process, please email us at email@example.com with the subject line “LTE Submission,” and we’ll work with you on drafting and submitting your LTE.
Please “like” our Facebook Pages:
- People For the American Way’s Facebook Page
- People For the American Way’s Amending the Constitution So Corporations Cannot Buy Elections page
Please “follow” us on Twitter:
- People For the American Way’s Twitter Handle
United For the People – the “hub” for amendment movement activity
Fighting Big Money in Politics campaign – PFAW’s campaign page for restoring Government Of, By, and For the People
Money Out, Voters In: A Guide to Democratic Reform – a PFAW report on what legislation and constitutional remedies are needed to get “Money Out” and “Voters In”
Take Back the Constitution from the Corporate Court – an analysis from PFAW Senior Fellow, Maryland State Senator and constitutional law professor Jamie Raskin on the need for a constitutional amendment to overturn Citizens United and relate cases.
[i] Citizens United v. FEC, 588 U.S. 310 (2010), available athttp://www.supremecourt.gov/opinions/09pdf/08-205.pdf. See also http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/for case history and media analysis.
Citizens United v. FEC was a case decided by the Supreme Court on January 21st, 2010. Although the case itself focused on a fairly narrow statutory question (whether a feature length film on Pay-Per-View was subject to the restrictions of the McCain-Feingold campaign finance law) the Supreme Court majority used it to issue a much broader decision that not even the parties had asked them to address. In a 5-4 decision, the Court ruled that laws preventing corporations from making independent expenditures from their general treasuries were unconstitutional, undermining a legal framework that had been in place for more than a 100 years. It also held that electoral spending done independently of a nominee’s campaign does not give rise to even the perception of corruption and therefore cannot be limited on that basis, therefore opening the door to “super PACs” that can accept unlimited contributions from both corporations and the billionaires who run them if they act independently.
[ii] Speechnow.org v. FEC, 599 F.3d 686 (2010), available at http://www.cadc.uscourts.gov/internet/opinions.nsf/4B824DD5C7D7C4EF85257807005A9A46/$file/08-5223-1236837.pdf. See also http://www.scotusblog.com/case-files/cases/speechnow-org-v-fcc/ for case history and media analysis.
[iii] “Billion Dollar Democracy,” US PIRG and DEMOS, available at http://www.uspirg.org/reports/usp/billion-dollar-democracy
[iv] Citizens United v. FEC, 588 U.S. 310 (2010), available at http://www.supremecourt.gov/opinions/09pdf/08-205.pdf. See alsohttp://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/for case history and media analysis.
[v] Buckley v. Valeo, 424 U.S. 1 (1976) p 51-54, available athttp://www.law.cornell.edu/supct/html/historics/USSC_CR_0424_0001_ZO.html#424_US_1n65ref
[vi] “47% of Congress are millionaires,” ABC News, available at http://abcnews.go.com/blogs/politics/2011/11/47-of-congress-members-millionaires-a-status-shared-by-only-1-of-americans/
[vii] Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 US (2011) p 2, available at http://www.supremecourt.gov/opinions/10pdf/10-238.pdf. See alsohttp://www.scotusblog.com/case-files/cases/arizona-free-enterprise-clubs-freedom-club-pac-v-bennett/ for case history and media analysis.
[viii] Buckley v. Valeo, 424 U.S. 1 (1976) p 57, available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0424_0001_ZO.html#424_US_1n65ref. See also Republican Nat’l Comm v. FEC 487 F. Supp. 280, 286 (S.D.N.Y. 1980) available athttp://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19800205_0000058.SNY.htm/qx
[ix] “Writing Reform,” Chapter III, Section III, Brennan Center, available at http://www.brennancenter.org/sites/default/files/legacy/Writing%20Reform%202010%20FINAL.pdf
[x] Buckley v. Valeo, 424 U.S. 1 (1976), available athttp://www.law.cornell.edu/supct/html/historics/USSC_CR_0424_0001_ZO.html#424_US_1n65ref
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.
[xii] “Overturning Citizens United: A Movement Moment,” available at http://www.huffingtonpost.com/marge-baker/overturning-citizens-unit_b_1194043.html
[xiii] “President Obama voices his support an amendment,” available at https://www.pfaw.org/content/president-obama-voices-his-support-constitutional-amendment