Constitutional Amendment

Where Scalia Agrees with America

As our recent poll shows, 92% of Americans agree that Congress needs to take action to right the wrongs of the Citizens United decision. One way to start would be to pass a bill like the DISCLOSE Act to force big corporations to publicly reveal the money they spend to influence elections. Proponents of such legislation may worry that the corporate-leaning Supreme Court will overturn the bill after it’s passed – but they shouldn’t worry too much. With the exception of Justice Thomas, none of the Supreme Court Justices have expressed hostility to disclosure requirements - in fact, the most well known conservative Justice on the Court may even be an advocate. As SCOTUSblog pointed out in May, Justice Scalia has been a vocal supporter of transparency in democracy:

Justice Scalia [has] expressed the strong view that disclosure requirements do not implicate significant First Amendment concerns. To the concern that disclosure could deter expression, Justice Scalia responded, “[T]he fact is that running a democracy takes a certain amount of civic courage.”

This may be one of the only instances in which Justice Scalia is in line with the majority of Americans. As our recent poll shows, 89% of Americans support the transparency legislation like the DISCLOSE Act, although many (62%) believe such legislation wouldn’t go far enough to correct the outrageous Citizens United decision.

The American people are right again: just forcing corporations to disclose their political activities can’t fix Citizens United’s dangerous assertion that the 1st amendment guarantees unlimited corporate spending on elections, and conservative Justices – Scalia included – are likely to overturn any legislation that would. That’s why 77% of Americans believe that we need a constitutional amendment to insure that our democratic system isn’t drowned in corporate money. And 74 % say they would be more likely to vote for a candidate for Congress who pledged to support a Constitutional Amendment limiting corporate spending on elections.

UPDATE: The Supreme Court has weighed in more on the value of political disclosure in today's decision in Doe v. Reed. We'll post more on that later this morning.

 

PFAW

New People For Poll Shows Broad Support for Correcting Citizens United

People For released a new poll today that contains some pretty stunning numbers showing the extent to which Americans are fed up with corporate money and politics… and ready to amend the Constitution to fix it.

Here are some of the findings:

    • 85% of voters say that corporations have too much influence over the political system today while 93% say that average citizens have too little influence.

    • 95% agree that “Corporations spend money on politics mainly to buy influence in government and elect people who are favorable to their financial interests.” (74% strongly agree)

    • 85% disagree that “Corporations should be able to spend as much as they want to influence the outcome of elections because the Constitution protects freedom of speech.” (63% strongly disagree)

    • 93% agree that “There should be clear limits on how much money corporations can spend to influence the outcome of an election.” (74% strongly agree)

    • 77% think Congress should support an amendment to limit the amount U.S. corporations can spend to influence elections.

    • 74% say that they would be more likely to vote for a candidate for Congress who pledged to support a Constitutional Amendment limiting corporate spending in elections.


The last point—that 74% of Americans, including a majority of Democrats, Republicans, and Independents would be more likely to vote for a candidate for Congress who pledged to support a Constitutional Amendment is striking. Passing a Constitutional Amendment requires overwhelming support from citizens across the country and across the political spectrum—but it also requires their being willing to take action. This poll shows that a broad majority is ready for both.

Click here to read more.

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The New Originalism Debate—An Early Roundup of Good Reads

A few weeks ago, former Supreme Court Justice David Souter delivered a call to arms against the misguided theory of “constitutional originalism” that has dominated recent debates on the Supreme Court. “The Constitution is no simple contract,” Souter said, “Not because it uses a certain amount of open-ended language that a contract draftsman would try to avoid, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.”

Souter’s argument has started a robust and refreshing conversation about keeping faith with the Constitution …. and debunking the notion of justices as constitutional umpires who have to simply stand at the plate and call objective balls and strikes.

Constitutional law professor Alain L. Sanders weighed in today with an interesting take on what a literal adherence to the Constitution as originally written —sure to be invoked in the upcoming hearings on Elena Kagan’s nomination— would mean:

The political oratory will be enticing to many, and sound astute, learned and even well-grounded. But much of it will be misleading, wrong-headed, and unsupported by logic, history, or the principles of the Constitution. A simple examination of the Senate confirmation proceedings themselves illuminates the fallacies of the conservative assault.

Sitting on the Senate Judiciary panel will be California's Dianne Feinstein and Minnesota's Amy Klobuchar. To any and all true-blue strict constructionists, the presence of these two women legislators ought immediately to sound the alarm of unconstitutionality and invalidate the entire confirmation process. The Constitution states clearly, directly and consistently throughout its many provisions that federal officials are to be men.

Sanders’ argument brought to mind some other great riffs on Souter’s speech that we’ve seen over the past couple of weeks. These articles are all worth a read:

The Constitutional Accountability Center’s Doug Kendall and UVA professor Jim Ryan argued that adherence to the full text and history of the Constitution – including all of its amendments - is something that progressives can and should embrace:

We live in an era thick with conservative nostalgia for the "original" Constitution and the ideas of our founding, even when those ideas have been repudiated or modified by subsequent constitutional amendments. Kagan would be doing the entire nation as well as the Constitution itself a service if she would use the confirmation process to express and explain her commitment to follow the Constitution—all of it. If Kagan does talk about the text and history of the Constitution, as well as the role of the court, it could go a long way toward recalibrating the current national debate on the judiciary and the Constitution.

Slate’s Dahlia Lithwick asked why it’s fashionable to see the Constitution as a simple instructional manual:

So, as we look forward toward Elena Kagan's confirmation hearings, the question isn't whether she will use the opportunity of her hearings to defend living constitutionalism or to debunk originalism. That is probably too freighted a discussion, and one that no progressive can possibly win in this day and age. The question I would ask is why it's so fashionable for nominees to suggest that the hard work of judging is simple; that the Constitution is no more complicated than the instructions for assembling an Ikea end table; and that the reason they are perfectly qualified for the job is that, well, they can read. What does it say about the court as an institution that everyone who goes through the interview process must downplay the difficulty of the job?

And Adam Serwer of the American Prospect, responding to Lithwick, calls originalism out as “a great hustle”:

Lithwick notes that the theory of orginalism assumes a "nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear." But to the originalists, it is always perfectly clear: The answer is whatever they want it to be, all other conclusions are inherently illegitimate. That's what makes originalism such a great hustle -- its arbitraryness is masked by nigh-bulletproof rhetorical argument -- that its adherents are simply "applying the law as written." In order to attack their reasoning, you first have to dismantle the idea that there are no inherent tensions within the Constitution that need to be resolved in order to reach a clear ruling. In a way, originalists are a bit like religious fundamentalists who insist on following their religious texts literally but in practice only select those that fit their prevailing cultural sympathies, dismissing others as heretics and unbelievers.

We’re hoping that the weeks since Souter’s commencement address are just the beginning of a new discussion about the Constitution and the importance of the Supreme Court in all of our lives - a discussion that should be at the center of the debate on Kagan’s confirmation.


 

PFAW

Candidates Begin to Appeal to Voters’ Disappointment with Corporate Court

Republicans say they’re plotting to use any Supreme Court nomination battle to their advantage in November.

But polls show that the issue cuts strongly the other way—the American public is overwhelmingly concerned about the current Court’s pro-corporate sympathies and its failure to fully appreciate how the law affects individual Americans.

Within hours of President Obama’s announcement that he would nominate Solicitor General Elena Kagan to the Supreme Court, Illinois Senate candidate Alexi Giannoulias seized on that message in an email to supporters. Here’s a screenshot:

Giannoulias isn’t the first candidate to appeal to the public’s discomfort with the Court’s pro-corporate bent. Last month, now-Rep. Ted Deutch decisively won a special election in Florida, after running on a platform that included a Constitutional Amendment to reverse Citizens United v. FEC.

Citizens United, Ledbetter, and Exxon v. Baker have brought home the impact that the Court’s corporate leanings can have on all Americans. We’re expecting to see a lot more office-seekers raising these issues as November approaches.

PFAW

Senators Introduce Crucial Citizens United Fix

This morning, Senate Democrats announced a sweeping legislative remedy to the Supreme Court’s decision in Citizens United v. FEC, which opened up elections to unlimited corporate spending. The DISCLOSE Act would require the disclosure of corporate money spent on influencing elections, and it would prevent foreign companies, government contractors, and bail-out recipients from spending money in American elections. People For’s President, Michael Keegan, weighed in:

Only a constitutional amendment or new ruling can truly 'fix' Citizens United, but the DISCLOSE Act goes far in mitigating its corrosive effect on our democracy. Americans want government by the people, not corporations. But as long as corporations have the ability to pour money into elections, Americans have the right to know how that money is being spent.

The Supreme Court enabled companies to spend money on elections while hiding behind front groups, PR firms, and advocacy groups -- without any disclosure whatsoever. It also opened American elections to spending by foreign corporations, government contractors, and companies that receive billions in government bailouts. The DISCLOSE Act would close these outrageous loopholes.

Not surprisingly, the main opposition to the legislation so far has come from the U.S. Chamber of Commerce, which has plans to spend $50 million on this fall’s elections.

The Chamber may be up for a tough fight. A PFAW poll in February found that 78% of those surveyed believe corporations should be limited in how much they spend to influence elections; 70% though corporations already had too much influence in the process. Other polls have found similar levels of displeasure—across the political spectrum—with Citizens United and the increasing role of corporate money in politics.

PFAW

Kyl disagrees with 69% of Americans on SCOTUS nominee

In his remarks on the retirement of Justice John Paul Stevens, President Obama alluded to his displeasure (which he hasn’t exactly been keeping secret) with the Supreme Court’s ruling in Citizens United v. FEC. Now the GOP is crying “litmus test”:

Senate Minority Whip Jon Kyl (R-Ariz.) invoked Supreme Court Chief Justice John Roberts’s name in a Senate floor speech Tuesday warning Obama not to nominate someone who would be an automatic vote against corporate interests. He made it clear such a nomination could provoke a GOP filibuster.

“The big corporation might have the right law and facts in a particular case,” said Kyl, who noted that Roberts in his own confirmation hearing said that in a dispute between a “big guy and little guy” he would vote for whoever had the law behind him.

“You don’t go on to the bench [saying], ‘I’m always going to be against the big guy,’ ” said Kyl.

Kyl’s straw man argument not only misconstrues Obama’s words, but shows how out of touch his party has become with the American people. A People For poll in February found that a full 78% of Americans—from across the political spectrum— believe that corporations should be limited in how much they can spend to influence elections, with 70% believing that corporations already have too much influence. And asked whether President Obama should nominate a Supreme Court justice who supports limiting corporate spending in elections, 69% said yes.

And just this week, a candidate running on a platform that included a Constitutional Amendment to overturn Citizens United won a resounding victory in a congressional special election in Florida.

Given that kind of evidence, Senator Kyl might want to rethink his decision to make himself a champion of corporate interests over the rights of ordinary Americans.
 

PFAW

Senator Cardin on a Constitutional Amendment

In a hearing today entitled "We the People? Corporate Spending in American Elections after Citizens United,” the Senate Judiciary Committee discussed the impact of the Citizens United v. FEC and possible steps to repair the damage.  In addition to touching on legislative fixes, the question of a Constitutional Amendment came up, posed by Senator Benjamin Cardin on Maryland. 

Don't forget to sign our petition, calling for a Constitutional Amendment to restore government by the people.

UPDATE: YouTube has been having some problems with embedded videos. If you have trouble playing it, try double clicking the video to open it in YouTube in a new window.

PFAW

Senators Dodd and Udall call for a constitutional amendment

Yesterday, Senators Christopher Dodd and Tom Udall introduced a constitutional amendment to correct the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission. According to Senator Dodd:

Ultimately, we must cut through the underbrush and go directly to the heart of the problem, and that is why I am proposing this constitutional amendment: because constitutional questions need constitutional answers.

People for the American Way applauds Senators Dodd and Udall, Senator John Kerry, and House members like Donna Edwards, John Conyers, and Leonard Boswell, for pushing constitutional amendments. We believe that this is the only complete remedy for the grave threat posed to our democracy by the Roberts Court and its equation of corporations with individuals – a perversion of the First Amendment.

While legislation is a crucial part of the effort to repair this decision, it should be only a part of our response. Constitutional amendments are warranted in only the most extreme circumstances. This is one of them.

You can join People For the American Way’s call for a constitutional amendment by signing our petition at http://www.pfaw.org/Amend.

PFAW

Senator Kerry Speaks Out for a Constitutional Amendment

During a hearing of the Senate Rules Committee today, Senator John Kerry announced his intention to introduce a Constitutional Amendment to repair the damage done by the Supreme Court in Citizens United v. FEC.

We face two challenges: first, to mediate the impact of the Court's decision and stop the bleeding through immediate countermeasures and, second, to think boldly about the best way to free our democracy from the dominance of big money.

Mr. Chairman, the reform ideas already circulating are promising - mandating shareholder approval of spending, prohibiting spending by domestic subsidiaries of foreign corporations and government contractors, giving candidates primetime access to the public airwaves at the lowest rates.

We must do those things quickly. But we may also need to think bigger. I think we need a constitutional amendment to make it clear once and for all that corporations do not have the same free speech rights as individuals.

The entire statement is worth a read.
 

PFAW

Correcting the Court is nothing new

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act into law, restoring the rights taken away by the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Company. One year to the day, a new movement is afoot to correct the Court.

Title VII of the Civil Rights Act of 1964 was enacted to protect individuals from discrimination they face in the workplace.  In Ledbetter, the Supreme Court undermined that protection by holding that employees who are subjected to pay discrimination must bring a complaint within 180 days of the discriminatory compensation decision and that each paycheck that is lower because of such discrimination does not restart the clock.  Advocates fought hard for a law that would reiterate Congress’ intent to hold employers accountable for their discriminatory practices and to allow employees a fair chance to challenge unlawful pay discrimination.

Advocates are now calling for another Court correction, this time in response to the Citizens United ruling, which prohibits Congress from limiting the influence of corporations in elections for public office. Not only is this a radical departure from longstanding precedent, it defies common sense: it argues that corporations and American citizens have identical free speech rights under the Constitution. As Justice Stevens pointed out in his dissent, corporations are not people. They cannot vote, they cannot hold office, and they should not be allowed to pour billions of dollars into our system of government.

Unfortunately the fix we found in for the Ledbetter decision is not enough to fix Citizens United. Legislation, while important and critically needed to mitigate the effects of the decision, may ultimately prove to be inadequate against the unfettered influx of corporate election spending. Only a constitutional amendment can restore the American people’s authority to regulate corporate influence in our elections and restore our democracy.

People For the American Way is calling for just such an amendment. Click here for more information and to sign our petition.

PFAW

The New Preamble

The New Preamble:

We the corporations of the United States, in order to accumulate historically unparalleled wealth, take advantage of limited liability, control the nation's news media, exercise monopolistic and oligarchic control over trade, and secure the blessings of power to ourselves and our subsidiaries, do ordain and establish this Constitution for the United States of America.

Personally, I kind of liked the old "We the People" idea, back when we thought the Constitution existed to protect people's liberty. Guess I'm an old-fashioned kind of guy. It'll take a constitutional amendment to get our Constitution back.

PFAW

More Good News from Iowa

While national Religious Right leaders have reacted with predictably apocalyptic venom to the unanimous Iowa Supreme Court ruling upholding marriage equality, there's more good news from the state's political leaders. According to the national Stonewall Democrats, the Iowa Democratic Party has long been on record supporting marriage equality, with a position clearly and unequivocally written in the state party platform.

And while state Religious Right leaders are demanding that the legislature begin the process of amending the state constitution, legislative leaders instead praised the Supreme Court's decision. Iowa Senate Majority Leader Mike Gronstal and Iowa House Speaker Pat Murphy issued a strong statement. Here's an excerpt:

Thanks to today's decision, Iowa continues to be a leader in guaranteeing all of our citizens' equal rights.

The court has ruled today that when two Iowans promise to share their lives together, state law will respect that commitment, regardless of whether the couple is gay or straight.

When all is said and done, we believe the only lasting question about today's events will be why it took us so long. It is a tough question to answer because treating everyone fairly is really a matter of Iowa common sense and Iowa common decency.

Marriage equality is a done deal in the state for now. Even if legislative leaders were eager to amend the state constitution, it's a long and complicated process that requires action by both houses in two consecutive general assemblies to put an amendment before the voters. According to the Des Moines Register, Iowa Family Policy Center President Chuck Hurley "acknowledged that until a constitutional amendment could be placed on the ballot, there's nothing gay-marriage opponents can do to stop gay couples from marrying in Iowa. The soonest such a vote could take place would be 2012."

Congratulations and thanks, Iowa. Next up: Vermont, where marriage equality has passed both houses with large majorities in spite of a veto threat from the governor. The vote to override is expected to be a close one.

PFAW

Obama’s Civil Rights Agenda: LGBT Equality

With George Bush and Dick Cheney finally out of power, our country is returning to its ideals so quickly and in so many ways that it’s dizzying. 

Recognizing the rule of law? Check.  Following the Constitution? Check.  Keeping politics out of law enforcement? Check.  Recognizing our right to know what our own government is doing?  Check. 

What about LGBT equality?  George Bush worked to enshrine discrimination against gay and lesbian Americans into the United States Constitution, supported laws that put gay and lesbian couples in prison for the crime of having sex in their own home, and fought to continue to allow workplace discrimination against LGBT Americans. 

And President Obama?  The White House website spells out President Obama’s agenda for LGBT equality, and it’s pretty terrific.  He: 

  • Opposes a constitutional amendment to prevent gays and lesbians from marrying
  • Supports expanded hate-crime legislation
  • Supports a transgender-inclusive ENDA
  • Supports civil unions (He’s still not with us all the way on full marriage equality, but we’ll keep pushing him on this one)
  • Supports eliminating the heinous Defense of Marriage Act
  • Supports legislation to ensure that same-sex couples have the same federal rights and benefits that opposite-sex married couples have

 But it’s not just the substance of the agenda that’s important:  Where it’s placed on the website tells us a lot. 

Rather than cravenly avoiding LGBT rights altogether or putting them in a category like “social issues” or “cultural issues,” as a number of others do, the White House places them exactly where they belong: as part of our nation’s civil rights agenda.  The Obama Administration is framing LGBT issues in a way that helps progressives set the terms of the conversation. 

The Radical Right dishonestly paints their anti-equality positions as pro-family, pro-values, and pro-religion, a dangerously deceptive framing that the mainstream media tends to blindly accept.  Thus, the Right has long set the terms of the national conversation. 

No more.  Using the bully pulpit of the White House, President Obama can make it clear that LGBT equality is nothing less than a civil rights issue. 

And that framing allows us to more effectively pin the Radical Right down by asking the threshold question:  What specific legal rights that you have should be denied to people who are gay, lesbian, or transgender?

PFAW

A Judicial Victory For Church-State Separation in Florida!

Yesterday, the Florida Supreme Court issued a ruling that rejects the latest efforts by the far right to undermine religious liberty in that state and pave the way for the return of a state voucher program. Just a few hours after hearing oral argument, the Florida Supreme Court unanimously held that two proposed state constitutional amendments that would undermine religious freedom and overturn the Court's ruling a few years ago striking down the state's publicly-funded school voucher program cannot be placed on the November ballot.
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