WASHINGTON - By a double-digit margin, voters want Congress to amend the Constitution to overturn the Supreme Court decision in Citizens United that allows unlimited corporate spending on elections, a new poll paid for by the Progressive Change Campaign Committee has found.
Nearly a fifth of voters remain undecided on an issue that has only been live since the Supreme Court overturned a century of legislation and precedent in a 5-4 ruling whose effect was visible to anybody with a television through the months of September and October. Of those who have an opinion, 46 percent said that "Congress should consider drastic measures such as a constitutional amendment overturning the recent Supreme Court decision allowing unlimited corporate spending in elections," while 36 percent disagreed. The survey, which was provided to The Huffington Post, was conducted by the liberal-leaning Public Policy Polling on November second and third and reached 548 voters.
A Constitutional amendment requires a two-thirds vote in both chambers of Congress and must be ratified by three-quarters of the states. But, said Rep. Donna Edwards (D-Md.), the author of an amendment that would overturn Citizens United, there have been times in American history when amendments have caught fire and ripped right through the land. "The process is very rigorous, and it should be," Edwards told HuffPost. "But there have been plenty of examples of amendments to the Constitution that have happened, actually, with fairly rapid-fire when they catch on."
Edwards, an attorney, said she wrote the simple text of her amendment the night that Citizens United was handed down. "I really concluded that the Supreme Court actually put the challenge out to us, here in the Congress. They said, you know, you could make a judgment that this is not really good for the system, but the fact is that the Constitution doesn't allow you to regulate this. Congress, you have no-- the Court told us directly-- Congress, you have no authority to regulate. And when the Court says that so directly, it only leaves us one choice," said Edwards.
In the Senate, John Kerry (D-Mass.) and Max Baucus (D-Mont.) have both gotten behind the effort. "Max Baucus and I, probably, if we had to serve in the same body, we probably don't agree on a whole bunch of stuff. But on this, he really gets it," said Edwards.
"Max is always willing to work with anyone toward the common goal of making sure Montanans' voices don't get drowned out by out-of-control corporate campaign donations," said Kate Downen, a Baucus spokeswoman.
Adam Green, cofounder of the PCCC, sees the amendment as a winning political issue. "It's time to stop thinking small-bore. The solution to Citizens United is not merely disclosure, it's to overturn Citizens United -- and even last November's Republican-skewed electorate agrees," Green said.
The structural hurdles are high ones. Both parties rely on corporate spending, though Republicans benefit far more than Democrats. Some of the difference is made up by union spending on the Democratic side, but dwindling union dues can never compete in the long run with corporate spending that can come directly from the company's treasury. In the first quarter of 2010, for instance, one company, Goldman Sachs, recorded a profit of $3.5 billion. That's roughly what both parties and all outside groups combined spent on the 2010 elections - and Goldman Sachs made that in just three months.
Republicans, meanwhile, took over at least 19 legislative chambers in states throughout the country on Election Day, making state approval of an amendment regulating corporate spending that much more difficult to pass.
But, said Edwards, Democrats need to embrace the idea that the Constitution is a political ground worth fighting on. "A lot of progressives are not accustomed to using the mechanisms of the Constitution. The right has used-- has tried to do that an awful lot of times on a whole range of different things in state legislatures and across the board. And as progressives, we're not accustomed to doing that, and this is one instance, though, where the populist demand is there, and our energy and our policy has to match that demand and a Constitutional amendment does that."
The amendment has strong support from law professors and former attorneys general. Even if the Constitution were amended, the task of regulating corporate political spending without infringing on the First Amendment is a difficult one.
Edwards' amendment specifically protects the freedom of the press. "The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity," reads the amendment. "Nothing contained in this Article shall be construed to abridge the freedom of the press."
If the amendment isn't clear about the distinction, it would leave room for the five conservative justices who wrote Citizens United to overturn corporate-spending regulations by citing the latter half of the amendment. In order to prevent that incursion, said Edwards, backers of the amendment will be able to point to an elaborate congressional record.
"We have to build an independent record, and a record that represents the history of the development of this Constitutional amendment that really supports us being able to define, in a way, that we would all have a common understanding of what we mean by 'press,' so that the Court then wouldn't be put in the position of having to sort through, itself, whether a film is press and speech, or whether a political ad, a full-length political ad running 30 minutes, is press or speech," she said. "Currently, we actually don't have that possibility, so it's left to the courts or it's left to the FEC and court interpretation to do that."