Call for Congress to Overturn "Citizens United" Through Amendment Picks Up Steam

June 9, 2017
Mark Karlin

Late last month, Nevada became the 19th state to call for Congress to overturn the Supreme Court's Citizens United v. Federal Election Commission decision. This would be accomplished through a constitutional amendment process. Since the 2010 ruling, its results have been overwhelmingly evident: The decision has substantially increased the influence of corporations on elections.

This shift has occurred via shady third party organizations -- entities which are supposed to be officially unaffiliated with political campaigns. However, it is extremely difficult to prove the existence of back channels of communication, and the likelihood of candidates buying elections and engaging in campaign finance-related corruption has increased. Furthermore, the increase in unregulated money going toward "indirect" electioneering has crushed the democratic process.

Public Citizen, a national advocacy organization and think tank, greeted the May 25 passage of Nevada's support for the amendment with a celebratory news release:

With Nevada today becoming the 19th state to support a constitutional amendment to overturn the U.S. Supreme Court’s Citizens United ruling, the effort to rid politics of the corrupting influence of money has reached a milestone. The movement has support from half of the 38 states needed to enact such an amendment after it is approved by two-thirds of both chambers of Congress.

[Until the Nevada legislature's vote] Eighteen states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Montana, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and West Virginia), Washington, D.C., and more than 700 municipalities have called for a constitutional amendment to overturn Citizens United. More than 5 million petition signatures have been gathered nationwide calling for an amendment. Americans across the political spectrum agree that big donors have too much power over our government. A national poll found that 80 percent of Republicans and 83 percent of Democrats support overturning Citizens United. Few other issues unite us in this way.

There are two major routes to amending the Constitution, as described by Move to Amend:

An 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 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).

Move to Amend is trying the first route: It seeks to pass an amendment reversing Citizens United in the House and the Senate. Thus far, the amendment has only been officially introduced in the House, but when it might receive a vote is open to speculation.

Move to Amend's proposal for the 28th constitutional amendment is to the point, consisting of two provisions:

Section 1. [Artificial Entities Such as Corporations Do Not Have Constitutional Rights]

The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law....

Section 2. [Money is Not Free Speech]

Federal, State, and local government shall regulate, limit, or prohibit contributions and expenditures....

Federal, State, and local government shall require that any permissible contributions and expenditures be publicly disclosed.

The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.

Other organizations are promoting different versions of an amendment revoking Citizens United, but Move to Amend's version has received the most support.

People for the American Way Executive Vice President Marge Baker praised the action of the Nevada legislature on the organization's website as

a clear signal that organizing works, and the voices of ordinary Americans can push back against the effect of enormous sums of money in our democracy—and they can win. At the grassroots level, there’s widespread agreement that giant corporations and wealthy individuals have too much sway in our elections. Again and again we see evidence that the system is rigged. But today’s win also shows us that we can change that, and put voters back in charge of our government.

Amid the tumult and reality-TV-style coverage of the Trump presidency, we have not heard a lot about corporate personhood and excessive and unaccountable campaign spending lately. Trump, however, has proved through his appointments, choice of advisers and deregulation-oriented actions that he is a believer that corporations often have more rights than people.

Let us work to educate more states about the need to side with democracy and not big money. There should be as much concern about how the Koch brothers and their plutocratic buddies influence elections as there is about the question of Russia's involvement in the last presidential contest. Political contests should be decided on the basis of public policy, as well as the candidates' skills and integrity. They should not hinge on the interests of corporations and outside influencers.

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