money in politics

Expanding Democracy by Amending the Constitution to Get Money Out of Politics

This piece originally appeared in the Huffington Post.

Ninety-five years ago today, we added an amendment to the U.S. Constitution saying that women have a right to vote in our elections. While today women's suffrage seems like a no-brainer to everyone -- except maybe Ann Coulter -- it was not an inevitability that simply fell into place. Women were not "given" the right to vote. It was an amendment that women fought for, tooth and nail, for more than 70 years in every state across the country

In a 2010 piece about the suffrage movement, New York Times columnist Gail Collins wrote that "behind almost every great moment in history, there are heroic people doing really boring and frustrating things for a prolonged period of time." It was a painstaking process of organizing, state by state, that ultimately led to the 19th Amendment.

It's not a fast process to amend the Constitution -- just ask Susan B. Anthony, who organized for decades and didn't live to see the passage of the women's suffrage amendment. It shouldn't be easy to change our country's guiding document. But we have a history of passing amendments, when necessary, to make our democracy more inclusive, and often to correct serious harm done by the Supreme Court. The women's suffrage amendment overturned a 1875 decision that held women didn't have a right to vote. In all, seven of the 17 constitutional amendments adopted since the Bill of Rights have reversed damaging Supreme Court decisions that threatened popular democracy.

Today we're facing another serious threat to our democracy: Supreme Court rulings like Citizens United. 

In the wake of decisions allowing unlimited spending to influence elections, money has inundated our political system like never before. 2014 was the most expensive midterm in history, but with fewer donors than in past elections. The 2016 presidential election is already on its way toward eclipsing all previous records. We're seeing more and more money from fewer and fewer donors, and it's taking a real toll on the functioning of our system.

There is a nationwide movement pushing for a constitutional amendment that would overturn decisions like Citizens United and take our political process back from the tremendous influence of big corporations and moneyed interests. Like the women's suffrage movement, it's a slow process of building support city by city, state by state, one conversation at a time. So far 16 states and 650 cities and towns have gone on record in support of an amendment, and momentum continues to build

The campaign for an amendment, like the Democracy For All amendment being considered in Congress, is grounded in simple ideas: we should be able to set reasonable limits on money in elections. The size of your wallet shouldn't determine the strength of your voice. Our elected officials should be paying attention to the needs and priorities of everyday Americans rather than following a political agenda set by wealthy special interests.

On Women's Equality Day we celebrate the expansion of political rights almost a century ago. It was an expansion based on the recognition that our political system is for all of us. But as the foundation of representative democracy is threatened by an overwhelming influx of money in elections -- to the point where all of us can no longer be heard in our democracy -- we are called to amend the Constitution again.

PFAW

2016 Candidates and the Fight to Get Big Money Out of Politics

There’s no denying it: the destruction of our campaign finance laws has created an out of control system that poses a serious threat to our democracy. The announcement that Republican presidential candidate Jeb Bush has raised over $114 million, along with the fact that the Koch brothers plan to spend almost $900 million, feeds into the fears of many that the U.S. is turning into an oligarchy, where the views of wealthy donors are the only ones that matter. A huge majority of Americans think the campaign finance system needs reform, and this is an issue that presidential candidates can’t ignore.

This week, Democratic presidential candidate Sen. Bernie Sanders, an outspoken opponent of big money in politics, pledged to introduce legislation at the start of the next session that would provide public financing for elections. Hillary Clinton has also stated her support for small-donor public financing. A bill introduced earlier this year by Rep. John Sarbanes (D-MD) attempted to level the playing field by providing voters with $25 to spend on elections and to match small individual donations to a candidate  6 to 1 with public money, which would turn into a 9 to 1 match for candidates that rejected large donations altogether.

In addition, both Sanders and Clinton have expressed their support for a constitutional amendment that would overturn decisions like Citizens United, as has Sen. Lindsey Graham.  These two solutions, public financing of elections and an amendment to get big money out of politics, are both highlighted as measures needed to fix the broken campaign finance system in “Fighting Big Money, Empowering People: A 21st Century Democracy Reform Agenda,” released by PFAW and other campaign finance reform proponents.  As the agenda makes clear, for lasting change we have to move beyond “individual statements or even individual solutions” toward a comprehensive set of policy solutions.

Three out of four Americans are in support of a constitutional amendment, and over 5 million people have signed a petition in favor of it. Many other political leaders at the state and local level from both major parties want to put an end to the post-Citizens United big donor arms race.

 As Sen. Sanders has pointed out:

The need for real campaign finance reform is not a progressive issue. It is not a conservative issue. It is an American issue.

PFAW

Scott Walker's Environmental Woes

At a recent campaign stop, Scott Walker was greeted by two young people who were very excited to see him – just not in the sense he would have hoped. Two activists from 350 Action tricked Governor Walker into holding up a fake check displaying his reliance on the Koch brothers.

When interviewed by reporters, one of the activists, Elaine Colligan, explained that her inspiration stemmed from Walker’s lack of climate change prevention policies. “Scott Walker is the worst on climate change,” she said, comparing him to the other 2016 presidential candidates. Colligan’s complaints are not unfounded, since being elected as governor of Wisconsin, Walker has demonstrated his preference for the fossil fuel industry over efforts to prevent climate change.

To list only a few of Walker’s policies that have led to his current reputation: he signed the no climate tax pledge, prepared a lawsuit against the federal government because of EPA regulations, proposed to cut $8.1 million from a renewable energy research center, and advocated for increased railways carrying frac sand. It is no surprise Walker is being targeted by environmental advocacy organizations like 350 Action.

At the campaign stop, another attendee joined in, saying: “Scott Walker will do anything to get elected! Because that’s what politicians do!” While this comment is particularly pessimistic, it stems from a frustration many Americans feel with our current campaign system. When a man like Scott Walker, who is receiving millions from undisclosed and unregulated donors, is more influenced by those donors than everyday Americans like Elaine Colligan, something is obviously wrong with the system. But there has been recent action calling for reform of this system, including a constitutional amendment to overturn decisions like Citizens United. Candidates need to be responsive to their constituents on issues like climate change, rather than to the wealthy special interests that can afford to pour money into our elections.

PFAW

Jeb Bush, Of All People, Says He Wants Lobbying Reform

On Monday, July 20th Jeb Bush announced that he wants to curb the influence of lobbyists in Washington, D.C. by setting a six-year moratorium on former members of Congress registering as lobbyists.  Bush said, ““We need to help politicians rediscover life outside of Washington… which — who knows? — might even be a pleasant surprise for them.” His comedic interjection is an indication of the stance he has decided to take on this issue, posing as a Beltway outsider who can see, and wants to reform, Washington’s corruption.

But Bush is anything but a political outsider. His father and brother spent a combined 20 years in the White House and he was Florida’s governor for eight years, after which he became a political consultant. Neither is he rejecting the money that lobbyists are currently collecting on his behalf: he has eight lobbyists working together to raise more than $228,000 for his campaign. That’s on top of his efforts to skirt campaign finance rules by spending months raising millions of dollars for a superPAC that purports not to coordinate with his own presidential campaign. Bush is the ultimate establishment candidate, regardless of whether or not he has spent time on the Hill.

And while this specific proposal is well and good, it’s also glaringly insufficient. The reforms Bush supports would not stop much of the lobbying that does occur in Washington. The six-year ban would only apply to registered lobbyists, a designation easily avoided by not engaging in specific activities or spending less than 20 percent of one’s time actually lobbying. There are simply too many loopholes Bush’s plan would not cover for real reform to occur.

Jeb Bush made this announcement in an effort to capture some of the grassroots anger at the role of money in politics. But, hopefully it will also ignite some real debate and raise public awareness of the reforms we would need to make a meaningful difference.

PFAW

The Vice President Calls for Action to Fight Big Money in Politics

Last week the fight against big money in politics received renewed, and passionate, support from Vice President Joe Biden. During a speech to young activists at the Make Progress summit on July 16th, Biden issued a call to action:

"We can do something about the corrosive impact of massive amounts of money. We can demand that the people we support don't yield to millionaires and billionaires. [Instead, they can] take their money in limited amounts, but what are we doing?"

The Obama administration has already declared its support for a constitutional amendment to overturn Citizens United (2010), but the Vice President called for a more immediate form of action: holding candidates accountable. "Folks, we ought to start in our own party. You ought to be demanding of all of us, all of us, because at least in our own party fights among ourselves, in primaries, that we adhere to a policy that doesn't rest on millionaires and billionaires."

This was a speech tailored to mobilize activists who have been part of a slow fight since 2010. Although progress has been made, with over 650 cities, 16 states, and 73% of Americans in support of a constitutional amendment, we have yet to see any real change in the way campaigns are funded. The 2016 presidential race is already seeing the effects of Super PAC funding and that influence will only continue to grow.

Biden clearly intended to inspire a new generation of activists by focusing on what the attendees themselves could do to help fix the system, saying, “If you're ever going to be involved in public service this is the time to do it, because things are changing.”

Hopefully the Vice President’s passion and optimism is an indication of the change that is coming in our campaign finance system. As Vice President Biden put it, the current system of auctioning our elections to the highest bidder is “a hell of a way to run a democracy."

 

PFAW

Campaigns and Their Super PACs: Not As Autonomous As One Would Hope

Thanks to damaging Supreme Court decisions and a gridlocked FEC, Super PACs have become a central element in our presidential elections. Yet, Americans could at least comfort themselves with the notion that these PACs and the candidates they support were at least required to operate independently from one another. A recent article in the Washington Post proves otherwise.

The article argues that a close reading of the Federal Election Commission rules shows that candidates and interest groups can do more than make public statements about their needs and hope their counterparts are listening; they can actually communicate with one another directly. According to the Washington Post piece, “Operatives on both sides can talk to one another directly, as long as they do not discuss candidate strategy. According to an FEC rule, an independent group also can confer with a campaign until this fall about “issue ads” featuring a candidate. Some election-law lawyers think that a super PAC could share its entire paid media plan, as long as the candidate’s team does not respond.” The coordination is more extensive than people imagine, and, apparently, perfectly legal.

But even the lawyers working on this issue do not agree on what is legal and what is not. Phil Cox who works for America Leads (a Super PAC supporting Chris Christie), says, for example, “The system makes no sense. It’s crying out for reform. We need to put the power back in the hands of the candidates and their campaigns, not the outside groups.” Bob Bauer, a campaign finance lawyer, agrees,

“The problem isn’t that the law isn’t being enforced — the problem is that we need to rethink the whole thing from the ground up.”

This coordination is already affecting the 2016 elections. But even beyond returning power to the candidates, we need to return the power of influencing elections back to the people. Because, in the end, it is the people who need to be represented and therefore, heard. Perhaps this regulation avoidance will cause people to realize that it is the system that needs reform.

PFAW

PFAW Members, Local Activists Hold Kelly Ayotte Accountable For Opposing Amendment to Overturn Citizens United

People For the American Way members and other supporters of the movement to get big money out of politics delivered a clear message last night about Sen. Kelly Ayotte’s refusal to support a constitutional amendment to overturn cases like Citizens United.

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Activists took to the South Willow Street Bridge in Manchester to hold boxes with LED lights to spell out the words “AYOTTE WON’T #GETMONEYOUT.” Ayotte has described a constitutional amendment to get money out of politics as “dangerous” – despite the fact that a majority of New Hampshire voters who support such an amendment.

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Voters in New Hampshire and beyond are increasingly concerned about the amount of money in politics, and the proposed constitutional amendment would dramatically curb political spending to help ensure that our elections can’t be bought by wealthy special interests. New Hampshire activists are committed to holding Ayotte accountable for her refusal to support the movement to undo big money’s corrosive influence on our elections.

 

PFAW

Unanimous D.C. Circuit Rejects Attacks on "Pay to Play" Prohibition

The D.C. Circuit details the history of corruption surrounding campaign money and federal contracting.
PFAW Foundation

New Hampshire Budget Battle Highlights How Big Money Affects Fiscal Policy

 In our current political landscape, moneyed interests frequently use their financial leverage to impact policy. For instance, Wall Street banks lobbied against a bill introduced by Sen. Elizabeth Warren that would help relieve students of their loan debt. For every dollar the fossil fuels industry spends on lobbying, it receives $103 in government subsidies. Now in New Hampshire, special interests are looking to change the state’s longstanding fiscal policy in their favor.

 New Hampshire Representative Timothy Smith credits the state’s ability to stay afloat financially without imposing a sales or income tax with its substantial business taxes, which bring in sizable amounts of revenue. However, that might change with the introduction of a bill by 13 Republican senators that would significantly lower the business tax, creating a hole of $90 million in the budget. Rep. Smith connected the introduction of this legislation to the fact that special interest groups, many of which would benefit from this change, spent over $900 thousand in New Hampshire’s legislative elections last year.

 Not surprisingly, New Hampshire residents are unhappy with the growing trend of big money influencing politics. Over two-thirds of the state’s voters believe that a constitutional amendment that would overturn decisions like Citizens United should be implemented. Sixty-nine state localities have passed resolutions calling for such an amendment, and over 120 small businesses are hosting Stamp Stampede stations, where patrons can stamp phrases like “not to be used for bribing politicians” on their bills.

 Rep. Smith co-sponsored a bill that called for an amendment to get big money out of politics, which passed in the New Hampshire House with bipartisan support. In addition, New Hampshire Governor Maggie Hassan dismissed the business tax reductions as “unpaid for tax cuts to big corporations” that would “put corporate special interest ahead of New Hampshire's families.” Officials in the state government are listening to their constituents’ concerns about the harmful effects of big money in politics.

 “Our constituents are trying to tell us something. They’re tired of their government serving lobbyists rather than citizens,” said Rep. Smith.

PFAW

Voters Are Concerned About the Influence of Big Money in 2016

Voters Are Concerned About the Influence of Big Money in 2016

Last week the Wall Street Journal and NBC published the results of a poll on various issues leading up to the 2016 presidential elections, showing that the influence of wealthy donors on elections is a growing concern among Americans.

Thirty-three percent of those surveyed say that the influence of wealthy donors is their biggest concern in the 2016 presidential race. Although the majority were Democrats, big money in politics was the issue with the most agreement between the two parties, only a seventeen percent gap separated Democrats and Republicans. The poll suggests that the influence of the wealthy is becoming less of a partisan issue, and more of a general anxiety for Americans when it comes to elections.

 The poll also revealed that

“the influence of wealthy donors was the primary concern for independents.”

This can and should influence the positions of the 2016 candidates as they seek to win over swing voters. Whether the growing anxiety amongst Americans about big money in politics will lead to changes in campaign finance remains uncertain, but the heightened awareness may bring the issue to the forefront of the 2016 race.

PFAW

New Hampshire Activists Launch Photo Petition Urging Sen. Ayotte to Support an Amendment to #GetMoneyOut

PFAW activists and allies are continuing to pressure Sen. Kelly Ayotte for her reluctance to support a constitutional amendment that would overturn cases like Citizens United.

A group of New Hampshire activists, many of whom have worked to pass local resolutions in their towns in support of an amendment, met with Sen. Ayotte’s legal counsel in May to deliver over 12 thousand petitions in support of the Democracy For All Amendment— a federal constitutional amendment that would allow Congress and the states to set reasonable limits on money in elections.

Over a month later, her office has given no indication she will support the Democracy For All Amendment.

In previous public statements she has characterized a constitutional amendment as “dangerous.”  And in a recent form letter to activists, Sen. Ayotte wrote,

By creating a "carve out" to the First Amendment that gives politicians the power to limit free speech and stifle political dissent, the Udall proposal jeopardizes all Americans' freedom of speech rights - and essentially says that our Founding Fathers got it wrong. It would also alter the First Amendment in ways that jeopardize more than political speech.

Of course, we know this issue isn’t about protecting free speech; it’s about everyone having an equal say in our elections and not having their own voices drowned out by a flood of big money.

In light of Sen. Ayotte’s clear refusal to recognize the influence of money in politics as stifling the voices of all Americans, PFAW activists and allies created photo petitions this weekend to send Sen. Ayotte a clear message about why 69 percent of New Hampshire voters support a constitutional amendment.

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PFAW

130 Members of Congress Call for Executive Order on Disclosure of Political Spending

Yesterday 130 senators and representatives urged President Obama to issue an executive order requiring companies that receive government contracts to disclose their political spending. A letter signed by more than one hundred representatives highlighted the lack of transparency in our current system and the important steps the president can take to help fix this:

Taxpayers have a right to know where their money is spent and you have the power to ensure that the American people can obtain this information. With public funds come public responsibilities, and any company receiving federal tax dollars should be required by executive order to fully disclose their political spending in a timely and accessible manner.

A letter signed by 26 senators echoed this call, arguing that an executive order would help restore confidence in our political system:

In our view, campaign finance disclosure is another issue that demands immediate action to restore the public’s faith in our democracy.

It’s not just members of Congress who are calling on the president to act. More than 83,000 PFAW members and supporters have signed our petition to the president urging him to issue an executive order. Several thousand more contacted their members of Congress asking them to sign on to the letters sent yesterday.

Right now corporations can spend unlimited amounts of money to influence elections, and they can do so in secret by funneling that spending though “dark money” groups. But if President Obama were to issue an executive order, some of the nation’s biggest corporations – like Exxon Mobil, Lockheed Martin, and any other government contractor – would have to disclose their political spending.

President Obama himself has called for a more transparent and accountable democracy. In his State of the Union address in January, he criticized “dark money for ads that pull us into the gutter” and called for a “better politics.” Now is the president’s chance to help create that “better politics.”

PFAW

States and Localities Fight Back Against Big Political Spending

Since the 2010 Citizens United decision, which opened the floodgates for record-breaking levels of election spending, Americans have pushed for a change. According to a recent New York Times poll, 85 percent of Americans agree that the campaign finance system needs reform, from “fundamental changes” to a “complete overhaul.” Now Americans are going to their state and local governments to spearhead efforts to get money out of politics. 

 Over 125 bills regarding campaign spending have been introduced in 33 statehouses in the last few months, even in the conservative stronghold Texas. Some of these efforts have been bipartisan; Montana’s Democratic governor Steve Bullock collaborated with a Republican-controlled legislature to pass a bill that requires nonprofit “social welfare” groups to disclose their political spending.

 “When somebody's hiding in the shadows and gut-shoots you, you have a right to know who's taking a shot at you,” said Republican Montana state senator Duane Ankely.

  Americans are already working to fix the problem of big money in politics. More than 150 organizations have supported the Unity Statement of Principles which articulates the values underlying key solutions to ensure a democratic system of government where everyone’s voice is heard, everyone follows the same set of rules, and where everyone is held accountable. One important solution to the problem of big money’s influence in politics is a constitutional amendment that would overturn the Supreme Court decisions like Citizens United and let the American people establish reasonable limits on election spending.

  Sixteen states and more than 650 cities have passed resolutions urging Congress to adopt such an amendment. Activists in twelve states recently delivered petitions to their members of Congressmen asking them to support the amendment, and with 311,950 local petitions were delivered to district offices in California alone. Further, nearly three in four Americans support implementing a constitutional amendment. Presidential candidates, such as Hillary Clinton, Bernie Sanders, and even Republican Lindsey Graham, have all spoken in favor of campaign finance reform. The movement to get money out of politics already enjoys bipartisan support at all levels of government, and the stage is set for even more momentum, particularly around an amendment, moving into 2016.

PFAW

PFAW and Allies Tell Congress to #GetMoneyOut

While amending the Constitution is unquestionably a weighty matter—only warranted in rare and compelling circumstances—this is one of those moments in our nation’s history.
PFAW

Money in Politics Survey Shows the Toxic Legacy of the Roberts Court

Overwhelming majorities recognize the corrosive impact money in politics has on our democracy. Why doesn't the Roberts Court?
PFAW Foundation

Arkansas Attorney General Delays Ballot Initiative to #GetMoneyOut: Coalition Will Continue Pressing

This week Arkansas Attorney General Leslie Rutledge rejected a proposed 2016 ballot initiative that seeks to increase disclosure in election spending and support an amendment to overturn Supreme Court cases like Citizens United. Groups leading the effort, including the Arkansas Democracy Coalition, People For the American Way and other national allies, plan to resubmit the ballot initiative language today, as the objections given by the attorney general are minor and can be easily addressed. Once submitted the attorney general will have ten business days to respond with her decision.

The rejection has generated a flurry of media attention and comes in the wake of a series of events in support of the initiative held last week in Little Rock. As PFAW and allies prepare to potentially launch a full-scale ballot initiative campaign, the decision of the Arkansas Attorney General remains an obstacle in the path of making Arkansas the 17th state to pass a resolution in support of a constitutional amendment to get big money out of politics.

Paul Spencer, Chairman of Regnat Populus, a convening organization of the Arkansas Democracy Coalition, said in a news release the group would revise the measure and submit a fifth version.

“The people of Arkansas deserve the opportunity to vote on these important issues,” he said. “We intend to respond to the very few points the attorney general has raised and trust that the office will not find any further reasons to block the campaign to put this on the ballot.”

PFAW

PFAW Kicks Off Letter Campaign for Amendment to #GetMoneyOut

While amending the Constitution is unquestionably a weighty matter—only warranted in rare and compelling circumstances—this is one of those moments in our nation’s history.
PFAW

Obama Calls Out Koch Brothers, Big Money in Politics at Correspondents’ Dinner

At the annual White House Correspondents’ Dinner this weekend, President Obama delivered 20 minutes of his trademark dry humor, working in jabs at Michele Bachmann, Joe Biden, climate change deniers in Congress, and himself, to name a few. Perhaps some of the most pertinent jokes of the evening came about halfway into his speech, when he poked fun at the 2016 GOP presidential field, the Koch brothers and the influence of big money in politics.

“Soon the first presidential contest will take place, and I for one cannot wait to see who the Koch brothers pick,” President Obama joked. “It’s exciting… the winner gets a billion dollar war chest. The runner up gets to be the bachelor on the next season of The Bachelor.”

“I mean, seriously – a billion dollars,” the president continued. “From just two guys. Is it just me or does that feel a little excessive?”

The president making these pointed jokes is the latest example of a growing cultural awareness of the problems stemming from big money in politics. With presidential candidates Hillary Clinton, Sen. Lindsey Graham, and Sen. Bernie Sanders all in support of a constitutional amendment to overturn Supreme Court decisions like Citizens United, this issue is rapidly ripening for broader public discussion.

PFAW

Scalia and Roberts Don’t Know Best: Here’s How We Take Our Politics Back from Reactionary Court and Billionaire Donors

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.

PFAW