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Can Occupy Overturn Citizens United? "Dear 99%ers..."

Posted: 12/14/2011 8:09 am

Nothing could enhance American democracy more than if Occupy Wall Street helped enact the 28th Constitutional Amendment to end the pretense that corporations are people who speak with money. The 99% can stop the privatization of government.

There's an important conversation going on about the goals of Occupy Wall Street after the evictions. Both conservative attack dogs and confused liberals have chided the movement for not having a to-do list ready on September 17 or November 17. A recent New Yorker cartoon showed a prophet holding up a sign "The End is Near," as a bystander asks, "Yeah, but what's your goal?"

The initial goal was to shift the national conversation away from an obsession with Washington and deficits to the ignored truth that income inequality is devastating the middle class. Done that. Now that OWS and its supporters are obviously puzzling through next steps, I have a suggestion, a plea really.

OWS should plug into the nascent effort to enact the 28th Amendment to the Constitution to overturn Citizens United and Buckley v. Valeo, two of the worst decisions in our judicial history, right up there with Dred Scott. They weave together two crazy concepts -- corporations-are-people and money-is-speech -- into the loony conclusion that corporations can buy democracy. Of all the possible principles to base their decision on, justices came up with giving more power to the most powerful organizations in America.

Talk about judicial activism! Only a satirist like Antonin Scalia could both argue that we have to follow the Founders' original intent and then make believe that the Founders intended to include corporations -- never mentioned in the Constitution, creatures of states given perpetual life to raise private capital for commercial purposes, not regarded as people by anyone in 1789 -- in the First Amendment.

Dylan Ratigan at the New York Common Cause dinner earlier this month observed that "campaign finance reform is everyone's #2 issue." But government cannot produce a cleaner environment, more stimulus and growth, stronger bank regulations, universal health care and a jobs bill until the machinery of democracy is repaired. So long as the Roberts Five allow Rove/Koch to raise and spend hundreds of millions of dollars secretly in local and national elections, we will have a government, as Joseph Stiglitz says, "of the 1%, by the 1% and for the 1%."

It's a fluke really that a few thousand Jews in Palm Beach County accidentally voted for Pat Buchanan which, eventually, allowed George W. Bush to replace Sandra Day O'Connor with Samuel Alito who became the fifth vote in the 5-4 Citizens United majority.

Here we are. With the odd-duck combination of George Will, Floyd Abrams and a national GOP defeating the DISCLOSE Act by filibuster, paralyzing the FEC, dominating the Supreme Court -- and an IRS allowing corporate political spending to be deductible charitable giving -- we're left with two constitutional options. One is that President Obama wins reelection and the lottery of life allows him to name and get confirmed a non-corporate apologist as one of the five majority justices. A lot of ifs there.

Or Article Five lays out how to pass a Constitutional Amendment that stops unlimited corporate (Koch) and individual (Bloomberg) money from privatizing democracy. I'm sure that the Brennan Center at NYU would help draft the precise language.

Nearly everyone at first thinks the prospect is just too remote and uphill. But. There have been 17 amendments since the Bill of Rights, usually when a bi-partisan super-majority and a popular, grassroots movement overcome inertia; in the modern era, the Equal Rights Amendment fell only three states short of the 38 necessary to become constitutional law. Well, there's now a near 80% majority against corporations pretending they're people speaking politically with money; and there is one popular, grassroots movement that can organize in Washington and every state Capitol almost overnight.

OWS, I'm talking to you. As your general assemblies and policy committees seek consensus on specific goals, please consider including a "Stop Corporatism Amendment" on your very short list. True, it's easy to compile a list of 20 issues/goals/demands... but hard to get it to three so the public can get behind a few big things. Lenin said "bread, land and peace"; Reagan said "reduce taxes, defeat communism." A movement that came up with "we are the 99%" can now evolve from concept to content by "occupying," say, foreclosures, tax rates... and democracy.

Occupying democracy can include pushing Washington to adopt the kind of public financing of public elections that now work in Maine, Arizona and New York City. Those put a floor under non-rich candidates who can then compete in elections. But what about building a ceiling over big business interests. Let them lobby, speak, and donate but not out of their trillions in corporate treasuries that drown out the voices of everyone else. Short of of a new justice and new decision, that requires not a federal statute but a federal amendment.

There are wonderful groups already engaged in this effort -- from Public Citizen to Free Speech for People; and six senators earlier this month, including Schumer and Durbin, introduced a constitutional amendment, Sen. Res. 29, needing two-thirds of the Congress to be sent to the states. But only OWS's energy, guts and brand can create people-not-corporations groups in every state either to enact the 28th or at least to mobilize opinion around the issue for future elections. Other than Labor, only they can get the numbers of people on the streets against big money in politics as we saw in Wisconsin and Ohio in those collective bargaining fights.

Sisyphean? Possibly. But if roles were reversed, wouldn't a Grover Norquist be starting a long-planned drive to convince voters that, to quote Mitt Romney, "corporations are just people"? (My favorite sign at Zuccotti Park: "Corporations will be people when Texas executes one.") If OWS is against a rigged economy and government, how can it leave the Constitution to a Tea Party with no understanding of how the Revolution and Constitution sought to replace a states-based Articles of Confederation with a federal government?

I've lived this issue over the decades as someone who's raised millions of dollars as a candidate, written books about the "evil of access," enacted laws advancing public financing, and then, with a shrewd sense of irony, run against the richest man ever to purchase office. That sequence leads me to two conclusions. First, OWS could create a pro-democracy movement to enact at least a federal public financing law, ideally a constitutional amendment.

Second, it would be tragic if Dr. King's second most famous speech in Washington, when he said at the Washington Monument in 1957 "Give us the ballot. Give us the ballot," did in fact enfranchise millions of Americans though the Voting Rights Act...only to posthumously fail when his political descendants didn't try to stop corporate money from erasing those ballots. As a tidal wave of secret super-pac money sweeps over Iowa and as OWS thinks about next steps, "we can't wait."

 
 
 

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