This piece, by PFAW Senior Fellow Jamie Raskin, was originally published by Salon.
If you take away Prohibition (the 18th Amendment) and its repeal (the 21st), most of our constitutional amendments since the original Bill of Rights have expanded the voting rights and political equality of the people.
Our post-Reconstruction amendments have abolished slavery (the 13th), provided for equal protection of the laws and required reduction of states’ congressional delegations if they disenfranchise eligible voters (the 14th), denied states the power to discriminate in voting based on race (the 15th) and shifted the mode of election of U.S. Senators from the legislatures to the people (the 17th). They have passed woman suffrage (the 19th), given residents of the federal district the right to vote and participate in presidential elections by casting electors (the 23rd), abolished poll taxes in federal elections (the 24th) and lowered the voting age to 18 (the 26th).
Moreover, many of these amendments have directly responded to Supreme Court decisionsdenying the political rights of the people. For example, the 19th Amendment overturned the Court’s decision in Minor v. Happersett (1875), which held that Equal Protection did not protect the right of women to vote, affirming precedents finding that women’s proper place is in the domestic sphere. Similarly, the 24th Amendment banning poll taxes in federal elections overturned the Court’s 1937 decision in Breedlove v. Suttles upholding such taxes.
But if you listened only to some of my colleagues in the legal establishment, you might never know that our unfolding Bill of Rights is a dynamic chronicle of the democratic struggles of the people for participatory political equality nor would you know that the people have often had to override reactionary decisions of the Supreme Court in the process.
A lot of lawyers today react with horror to U.S. Reps. Marc Pocan and Keith Ellison’s excellent push for a constitutional amendment to establish an affirmative and universal right to vote against recurring state efforts to disenfranchise people. And a lot of academics were aghast last summer when every Democratic United States senator supported a constitutional amendment to reverse Citizens United, McCutcheon v. FEC (2014) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).
The amendment, backed by the vast majority of Americans and a surging national campaign that 16 states and more than 650 cities and towns have joined, would restore the people’s power to stop CEOs from spending corporate treasury wealth on political races, to impose reasonable campaign finance limits such as caps on aggregate contributions, and to develop public financing laws with matching grants that help empower poorer candidates to be heard over the roar of big money.
Yet we are constantly invited to believe that, however much big money comes to dominate our politics and control public policy, we must never touch our Constitution. It must be hidden away in the attic where it will be tended by wise Supreme Court justices and law professors who know that the people’s constitutional values will always be inferior to those of the judiciary and the experts. This attitude betrays our progressive democratic heritage and Thomas Jefferson’s important warning:
Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment . . . . But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.
The country’s most prolific voting rights scholar and blogger, Richard Hasen—a colleague and friend of mine—is the most recent legal academic to pour cold water all over the movement for a constitutional amendment to rebuild the statutory wall protecting democratic elections from the flood of plutocratic and corporate wealth. This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and the McCutcheon decision.
While Citizens United turned every corporate treasury in the country into a potential political slush fund, McCutcheon wiped out all aggregate limits on federal campaign contributions so that tycoons can now max out to every incumbent Member of Congress–plus all their opponents! The top half of the top 1 percent can now pretty much bankroll all federal campaigns, which is one reason why run-of-the-mill Republican millionaires and bundlers are complaining to the Washington Post that they have been bypassed in the nation’s wealth primary by “multi-multimillionaires and billionaires.” The bottom half of the top 1 percent is getting a sense of what it is like to be a political spectator in the country’s exclusionary wealth primary.
The Post also reports that public anxiety about plutocracy is becoming a key issue in the presidential election—not just among Democratic activists for whom it is “red meat,” according to Professor Hasen, but for Republicans and Independents too—pretty much everyone who lacks the strategic advantages of Sheldon Adelson and the Koch brothers. Earlier this month, Republican Sen. Lindsey Graham also pointed to the need for a constitutional amendment to fix the damage done by Citizens United. Indeed, if you don’t think the accelerating takeover of our politics by big money affects public policy in the real world, you may or may not be an academic, but you are definitely too innocent to be let out of the house by yourself.
In launching her 2016 campaign, Democratic presidential candidate Hillary Clinton declared a “big fight” to fix “our dysfunctional political system” by getting “unaccountable money out of it once and for all, even if it takes a constitutional amendment,” and I say good for her. Given Clinton’s legislative and political experience and her own prodigious navigation of our money politics, she obviously knows how the Roberts Court’s magical transformation of for-profit business corporations into political membership groups has completely distorted politics in the Citizens United era. Of course, some of the Republican presidential candidates are charging her with hypocrisy for seeking to change the plutocratic political system that shapes her campaign, along with everyone else’s, and sullies everyone who touches it. But this is predictable and pedestrian. The nihilistic enemies of reform prefer nothing systemic to change just so long as they can keep denouncing Hillary Clinton.
Thankfully there is no talk of hypocrisy in Hasen’s critique, but still all Clinton gets from him is a lot of negative energy. First, he faults her for not trying to fix “the nation’s disclosure laws,” which is strange because she supported the Disclose Act, which U.S. Rep. Chris Van Hollen introduced and which Republicans killed, and she has always championed disclosure. It is also strange because Clinton is clearly treating a constitutional amendment as a last resort in a struggle against a runaway faction of five plutocrats on the Supreme Court. If I am reading her correctly, Clinton wants unaccountable corporate money—which is now spent by CEOs in our political campaigns on a secret basis and without any consumer, shareholder or citizen control over it—to be subject to public regulation “even if it takes” a constitutional amendment. That doesn’t sound so reckless to me.
For Hasen, it seems sufficient to work for years or decades to mandate disclosure of the billions of dollars in corporate money coursing through the veins of the body politic, and then leave things at that. He is afraid that actually restoring the power of Congress to impose “reasonable” and viewpoint-neutral limits on corporate political expenditures would be subject to an effective judicial veto through reinterpretation by “a conservative majority on the Roberts Court” and therefore useless. Well, it is also the case that the addition of the words “equal protection” to the Constitution were effectively nullified through reinterpretation by a Jim Crow Supreme Court between Plessy v. Ferguson (1896) and Brown v. Board of Education(1954). But does that make passage of the Fourteenth Amendment a bad idea? The Supreme Court has been a conservative and reactionary institution for most of our history, but that is precisely the reason for the people to write our Constitution in a way that advances and protects strong democracy. Having the right constitutional language in place may not be sufficient to constrain the reactionary elitism of the Supreme Court, but it is certainly necessary.
If we just wait around for new justices to change things and fail to directly engage this constitutional question in the public arena, we can expect to see the few remaining bricks of campaign finance law flattened by the Right and the Court, including base limits on individual contributions, the Tillman Act’s century-old ban on corporate contributions to federal candidates, the rules against “coordinated expenditures” between candidates and independent spenders, and the limits in 29 states on making campaign contributions during legislative sessions–all of them clearly at odds with the absolutist dogmas of the Right: that political money is political speech, that business corporations are First Amendment-protected political (and religious!) associations, and that the only kind of political corruption we can acknowledge and regulate are quid pro quo transfers tantamount to bribery.
But Hasen, finally, calls a constitutional amendment a “political nonstarter” because of the difficulties of passage. But here he ignores not only the success that popular movements have had in inscribing democratic values in the Constitution throughout our history, but also the way that serious constitutional movements can reshape the terrain of American politics with or without final passage and ratification. For example, the heroic movement for the Equal Rights Amendment in the 1970s not only led to widespread adoption of state constitutional amendments and significant federal statutory changes advancing the equal rights of women but also helped shock the Supreme Court into action to apply “heightened scrutiny” to official gender-based discrimination under Equal Protection doctrine. Constitutional movements can change the mind of the Court.
Whether or not we summon up the two-thirds of Congress and three-fourths of the states needed to pass a strong new anti-plutocracy amendment, the movement for such an amendment is essential to change the degraded assumptions of the Citizens United era. It will open up space for revival of the Disclose Act, for consideration of the “Shareholders United” legislation that I and other legislators have been advancing at the state level, for progress for small-donor plans like Congressman John Sarbanes’ Government By the People Act, and for an honest debate about Citizens United, which turned on its head two centuries of conservative understanding of what a corporation is.
Even if the best we can hope for is some modest new disclosure rules and a few new Supreme Court justices who tilt towards democracy over plutocracy, as Hasen advises Hillary Clinton, these outcomes are far more plausible and likely with a lively popular constitutional movement on the ground than the defeatist attitude that the Supreme Court always knows best.
In an op-ed printed in the Portland Press Herald this weekend, retired congressman Barney Frank offers a sharp critique of the far right Supreme Court under John Roberts. Explicitly noting the importance of the Court in defining law that affects all citizens, Frank makes clear not only that courts matter, but everyday citizens have a hand in how these courts are shaped.
Reviewing the impact of recent Supreme Court decisions — from overturning “more than 100 years of federal and state efforts to regulate the role of money in campaigns” to declaring that corporations have the right to religious freedom under RFRA—Frank states that “the court has ended this term with a barrage against laws it does not like” (emphasis added).
…The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.
The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it (emphasis added).
Frank refers to the unceasing Republican obstructionism and argues courts are critical for defining laws that affect Americans on a daily basis, highlighting the importance of this year’s midterm elections. As he concludes in this piece,
This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.
The Washington Post ran a story yesterday about President Obama's successful push to bring greater diversity to the federal courts. The story quoted a conservative activist who accused the White House of "lowering their standards" in order to find diverse nominees and a Republican aide who claimed that the White House's focus on diversity would "override the substantive qualifications of the nominees."
Leslie Watson Malachi, Director of African American Religious Affairs at People For the American Way, responded with the following letter to the editor:
To the editor:
Regarding the March 3 story, “Obama pushing to diversify federal judiciary amid GOP delays.”
One of President Obama’s most significant, but least noticed, achievements has been his effort to bring more women and people of color to the federal bench. Last week, the U.S. Supreme Court showed us just how critical that effort is.
In oral arguments on Shelby County v. Holder, the challenge to Section 5 of the Voting Rights Act, Justice Antonin Scalia declared that the renewal of voting protections for people of color simply amounts to a “racial entitlement.” Justice Sonia Sotomayor, the first Latina on the Supreme Court, promptly contradicted him.
Scalia’s arrogant dismissal is echoed by the conservative activist who tells the Post that the White House may be “lowering their standards” in nominating women and people of color and the GOP aide who worries that a focus on diversity would “override the substantive qualifications of the nominees.”
President Obama hasn’t had to choose between qualified nominees and diverse ones. Instead, he’s chosen judges and justices like Sotomayor: excellent nominees from diverse backgrounds, all of whom have earned their way to judgeships for which they are eminently qualified.
LESLIE WATSON MALACHI
DIRECTOR, AFRICAN AMERICAN RELIGIOUS AFFAIRS
PEOPLE FOR THE AMERICAN WAY
On Friday, the Supreme Court agreed to hear two landmark cases on marriage equality. Yesterday, Justice Antonin Scalia reminded us again why gay rights advocates, to put it mildly, aren’t counting on his vote.
Scalia is the Supreme Court’s most outspoken opponent of gay rights. He led the dissent to the two major gay rights decisions of his tenure on the Court, the decisions to strike down Texas’ criminal sodomy law and to overturn Colorado’s ban on local anti-discrimination measures. And in his spare time, he minces no words about his uncompromising opposition to gay rights. Here are seven of his most egregious anti-gay statements: