THE BLOG
09/27/2013 04:43 pm ET Updated Nov 27, 2013

We the People v. the Roberts Court

When the Supreme Court hears arguments in the McCutcheon v FEC case on October 8th, it will not only threaten an important piece of campaign finance law but also the fundamental balance of powers established by our Constitution. Ever since Chief Justice Rehnquist has departed, the Court has increasingly overstepped the bounds of judicial review in campaign finance cases and has overruled not only the legislative branch but also the vast majority of Americans. The arrogance of the Roberts Court is nothing short of a judicial "coup d'etat" that threatens the very essence of republican government upon which our nation was founded.

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Most directly at stake in McCutcheon are the aggregate contribution limits that currently prevent anyone from directly donating more than $123,200 to all federal candidates and political committees combined. Those limits are important and losing them would be another brick in the wall built to keep ordinary Americans outside the circles of power in our government.

But more significantly, what the Court did in Citizens United and is poised to do in McCutcheon, is tell the American people that we can no longer decide for ourselves that our government is corrupt. Rather, the Court will decide for us. And, in the Court's opinion, the government is not corrupted by huge sums raised by federal candidates or by unlimited independent expenditures by billionaires and corporations aimed at electing their favored candidates to office. Case closed.

In the wake of the Watergate scandal, Congress passed sweeping campaign finance rules that limited what candidates could spend on their campaigns and limited what large donors could give directly to candidates and to independent campaigns.

The Court struck down the post-Watergate spending limits using the misguided logic that unlimited campaign spending is the same a free speech. But it upheld limits on contributions to candidates because they prevented corruption.

In subsequent rulings, the courts have chipped away at even these modest reforms by allowing both individuals and corporations to contribute unlimited amounts to independent campaigns. The legislative branch and the public both clearly understand that huge independent expenditures can be just as corrupting to our entire system of government as a big contribution to a candidate. But this Court doesn't care what we think. The Roberts Court has decided that independent spending cannot possibly be corrupting.

Left unchallenged, this brazen assertion of judicial overreach threatens not only our campaign finance system but the basic principle that government's sole legitimacy rests upon the consent of the governed.

Most of our founders were ambivalent about giving the Supreme Court the right to declare acts of the legislature unconstitutional. But, even those who supported strong judicial review did so under the principle that the Court had a duty to act on behalf of the people in cases where the legislature had gone beyond its constitutional authority. This is why it is particularly important for "We the People" to directly and collectively speak out against the wrongful interpretations of the Supreme Court in establishing that unlimited campaign spending is free speech.

It is arduous, and rare, for the public to engage in sufficient dialogue and deliberation around an issue in order to legitimately speak collectively as "We the People" around a core constitutional principle. We have done so around key election issues before however, ranging from direct election of Senators, to expanding suffrage to women and 18 year olds while eliminating the poll tax. Those changes were eventually ratified through formal constitutional amendments, but we have reversed separate but equal education, the Supreme Court's rejection of child labor laws and much of the New Deal through speaking out forcefully enough that the Court eventually deferred.

Some campaign finance lawyers feel it is too difficult to rouse the public into the collective outcry required to speak as We the People. They hope that the Supreme Court may reverse course on its own, perhaps after a new justice is seated and clever new legal arguments are devised.

But to leave this matter in the hands of lawyers and judges would be an abdication of our role as citizens and ultimately an abandonment of sovereignty and self-government. If we refuse to defend our constitutional values from five rogue Justices, we are giving up on more than campaign finance reform. We are giving up on our republic.

So, how do We the People raise our collective voice?

The people can speak by petitioning our government, and more than 1.9 million citizens have already signed petitions calling for a reversal of Citizens United. We can speak through protest. Many of the Occupy demonstrations of 2011 focused on the message that corporations are not people.

We can call upon the legislative branch to support an amendment to the Constitution that would explicitly overrule the Court. More than 125 members of Congress and 14 state legislatures have done just that.

The people also speak through elections. Voters in Montana and Colorado have approved statewide ballot measures by margins of three-to-one instructing their elected officials to use every means at their disposal to overturn Citizens United. More than a hundred similar local measures have passed in cities ranging from Los Angeles to rural Wisconsin to Chicago. Every time voters have considered the topic, they have passed it overwhelmingly. There can no longer be a serious argument that the voters are divided or undecided.

But beyond an amendment, there are myriad other ways for the legislative and executive branches to defend the Constitution on behalf of the people. The elected judges of the Montana Supreme Court recently upheld Montana's 100-year old ban on corporate treasury funds in elections in express defiance of the Citizens United ruling. Representative John Dingell has introduced legislation in Congress to re-enact many campaign finance policies thrown out by the Supreme Court. Citizens in Arkansas have filed a ballot initiative that would deprive corporations who spend money in politics of the privilege of limited liability.

A further step will be candidate elections. Voters in Massachusetts will soon choose a replacement to Ed Markey in the Congress. They will pick between Democrats with different positions on Citizens United. Senator Mitch McConnell, a staunch supporter of the money is speech doctrine, faces both a primary and general election challenge in Kentucky. These election outcomes may demonstrate the intensity that people feel about Citizens United and those politicians who defend it.

Should the judiciary remain intransigent, the executive branch could add to the duties of Justices by assigning them to the circuit courts, or alter the number of Justices who participate in any given case. The legislative branch could use impeachment as a tool. Or, the executive branch could simply move to enforce laws that the Roberts Court objects to, leaving it to juries and voters to decide which branch is correct. These tactics seem extreme, but some of them have been employed throughout our history and the Roberts Court's threat to our constitutional checks and balances so severe that it may be time to think outside of the box that the Court has put us in.

Former President Jimmy Carter has said the U.S now has one of the worst election processes in the world due to the influence of big money. If we agree with him, then citizens must speak out together as "We the People" and assert our inalienable right to interpret our Constitution in such a way as we consent to be governed. Anything short of that concedes everything our predecessors have fought and worked so hard for--a government of, by, and for The People.

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