By Jesse Durst
With the unprecedented lack of public trust in both the government and corporate America, the issue of money in politics has reached a crisis point. According to a recent poll, over 90 percent of Americans believe politicians listen more to their donors than to the voters. Citizens United v. FEC (2010) opened the door to independent expenditures by corporations and other interest groups for political purposes. Combined with Buckley v. Valeo (1976), which held that limits on election spending are unconstitutional, Citizens United means that corporations can spend unlimited sums to influence public opinion and sway legislators.
We are on the precipice of a shift in the Supreme Court that will leave us with almost no chance of overturning Citizens United for a generation. Congress has shown little interest in doing anything about the issue, with both Republicans and Democrats alike continuing to take corporate donations and fund their own Super PACs.
The logic behind Citizens United and its predecessors is as tortured as it is corrupt. If corporations are “people” and money is “speech,” any regulation that controls or restricts corporate speech could become suspect. Next, will corporations be allowed to directly sponsor politicians like they do NASCAR drivers? More broadly, will corporate regulations like truth in labeling laws be declared unconstitutional by the court?
Additionally, the courts have long held that the government cannot compel speech. Does the logic of Citizens United mean that the government can neither compel corporate speech nor expenditures? What would that mean for insurance law? Or environmental regulatory reporting and compliance? Or consumer warnings on product labels? With the Supreme Court taking a turn to the far right, we may have the opportunity to find out.
After Citizens United, few options remain for fixing the problem of money in politics. One would be lobbying Congress to pass a Constitutional amendment declaring that 1) artificial entities such as corporations do not have constitutional rights and any rights granted to such entities will be through legislation 2) the courts cannot conflate the spending of money to influence elections with speech protected under the First Amendment. The organization Move to Amend has some draft language written for such an amendment.
Unfortunately, there is little chance that Congress will pass an amendment any time soon. A two thirds supermajority is required for any amendment before it is passed on to the states for ratification. Both Democrats and Republicans are currently largely dependent on independent donations to both their campaigns and Super-PACs in order to win elections. Congress is unlikely to voluntarily remove a large source of their campaign funding willingly.
Other legislative options exist that would likely be viable under the Constitution. Large federal or state matching funds for small dollar donations could be used to outspend Super-PACs 10 to 1, effectively diluting their power. However, any legislative fix, if passed, will undoubtedly be attacked by corporate interests and could be reversed more easily if Congress acquires the necessary votes. Moreover, such legislation would not resolve the more fundamental issue of corporate personhood and money in politics, but would simply raise the bar for expenditures.
Given the issues with the strategies outlined above, the most viable option left is to use a procedure outlined in Article V of the Constitution. The strategy involves lobbying the state legislatures individually to call for an Amendment limiting corporations and special interests from influencing elections. Upon the application of the legislatures of two thirds of the states, Congress can be forced to call a convention for proposing amendments.
Wisconsin has the opportunity to send a message to Washington, D.C. by supporting the Free and Fair Elections (SJR24) resolution currently circulating in the Wisconsin State Assembly and Senate. This resolution, introduced by Senator Chris Larson (D-Milwaukee), would urge Congress to call a limited convention to amend the constitution and permanently clear the stain of corruption on our democracy. Similar Article V resolutions passed by state legislatures led to the 17th Amendment, which elects Senators by the popular vote, and the 22nd Amendment, which set term limits on the Presidency.
Unfortunately, SJR24 could not have come at a worse time. A parallel resolution (SJR18) has also been introduced that would call for a balanced budget amendment at the federal level. The dangers of the resolution are not lost on Wisconsinites who have witnessed drastic budget cuts at the state level. But the effect nationally could be catastrophic. I won’t go into why fiscally hamstringing the U.S. government (in particular during a recession) is dangerous and completely infeasible. [For those who are interested in the dangers of austerity and the importance of countercyclical spending, check out Mark Blyth’s Austerity: The History of a Dangerous Idea].
Progressives in the state are understandably scared about the effects such an amendment would have on the entire country if it were passed. However, instead of addressing the real issue – namely, that a Balanced Budget Amendment would wreak havoc on our national economy – some groups have chosen to sidestep the issue by scaremongering about an Article V convention in general. Lots of unproven claims about “rewriting the Constitution” have put our state legislators on high alert. At a time when Republicans maintain control of 67 of the 98 state legislatures and have the ability to select delegates to a hypothetical convention, there is reason for concern.
However, there are also various reasons why an “open convention,” where the entire U.S. Constitution is up for grabs will likely never happen, or at least will never be ratified.
First, the Justice Department issued a memo in 1987 clearly stating, “Since it is undisputed that Congress possesses the authority to propose amendments limited to a single topic or group of topics, it follows that the applications of the states for calling a constitutional convention also may be limited.” Both resolutions being floated in Wisconsin call for a limited Article V convention addressing only the topics noted in the resolutions.
Second, Congress has never allowed an Article V convention to take place. Each time a resolution received close to the requisite number of states necessary for calling a convention, Congress has preempted them by proposing an amendment themselves. This is exactly what happened with the 17th amendment and with the 22nd amendment. The threat of an Article V convention seems to be enough to force Congress to act before allowing unelected delegates to take control of the amendment process.
Third, even if the worst-case scenario were to occur – an unmitigated disaster where the entire constitution was re-written – it would have to be ratified by 38 states before it would become binding. Then the question becomes whether 38 states would be willing to overhaul the U.S. Constitution, or even to pass a balanced budget amendment. Republicans currently control both houses in 32 states, 6 states short of what they would need, although my guess is that, with the political climate being as it is, Republicans are about to start losing elections.
Fourth, talking about the Balanced Budget Resolution and the Free and Fair Elections Resolution in the same breath as if they are equally dangerous and cut from the same cloth is disingenuous and hurts the cause of getting money out of politics. We cannot continue to fight one another and refuse to act as the house burns around us.
There is only one way forward. The Supreme Court and Congress are lost and will not act unless the people demand change. The only way to force that action is a resolution calling for a limited Article V convention to get big money out of politics for good. If you want to support this important resolution, contact your state legislators and tell them to support SJR24 introduced by Senator Larson and Representative Crowley. The future of our democracy depends on it.
Jesse Durst is an energy efficiency consultant in the Madison area and an active member of OWR Dane County.