There is nothing new about presidential candidates pledging to amend the United States Constitution. Equal parts ritual and necessity, little else rallies a party’s base quite like a bold promise to insert a plank of its platform into the Constitution.
Ronald Reagan promised to support a constitutional amendment to allow prayer in schools, George H.W. Bush campaigned on a balanced-budget amendment and George W. Bush ran on a gay marriage ban. But pledges like these have been empty vows for a simple reason: it is virtually impossible to amend the Constitution, by most accounts the most rigid in the world.
Hillary Clinton recently pledged to push a constitutional amendment on campaign finance within her first 30 days as president. Barack Obama had called for a similar amendment during his own race in 2012.
But what is different about the Clinton promise to amend the Constitution—different from all other presidential amendment pledges in the last generation—is that it just might happen this time. And the reason why comes down to what we can call the Trump effect.
Amending the Constitution is no easy task. It generally requires two-thirds of both houses of Congress to agree on an amendment proposal. If the proposal somehow gets through Congress, it must then be ratified by three-quarters of all states—that’s 38 out of 50.
Here is how hard it is to amend the Constitution: over eleven thousand amendment proposals have been introduced in Congress since 1789, but Congress has approved only 33, and of those only 27 received the necessary state approvals to become official. So in 227 years there have been only 27 amendments to the United States Constitution.
The last constitutional amendment was adopted twenty-five years ago in 1992. The next-most recent was in 1971.
There are two big reasons why the Constitution has not been amended in over a generation.
The first is that Congress has become incredibly polarized since the 1990s, each election cycle making it worse than it had been before. The odds of getting two-thirds of Congress to agree on anything important—let alone on an amendment to the Constitution—are longer than a third party winning the White House. There have of course been exceptions to this modern rule in times of crisis or emergency, for instance with the 2001 Patriot Act, which was supported 98-1 in the Senate and 357-66 in the House. But such agreement is rare even in the best of ordinary times.
The second reason why there have been no amendments since 1992 is that the Constitution today changes as the Supreme Court interprets it. When the Court issues a ruling involving the Constitution—on abortion, affirmative action, gun rights, on anything really—it actually changes the Constitution in almost the same way as a constitutional amendment. The biggest difference is that an amendment alters the Constitution’s text but a judicial opinion does not. Both are binding, both can pressure the president or Congress to act or not, and both are battlegrounds for constitutional supremacy.
If Hillary Clinton is elected in November, she will try to change the Constitution on these two fronts.
As president, she will nominate Supreme Court justices who share her vision for the Constitution. With a new progressive majority on the Court, justices will begin dismantling the conservative legal infrastructure built over the last generation. This will bring significant changes to the Constitution.
Clinton has also declared her intention to try to alter the text of the Constitution in her pledge to push for a constitutional amendment on campaign finance. The only way to do that is with supermajority votes in Congress and in the states―and these are votes that the Democratic Party does not yet have.
Here is where Donald Trump comes in.
As the Republican presidential nominee, Trump is showing poorly in poll after poll, both in national and state polls. One recent forecast suggests that Clinton is now above 270 “safe” or “likely Democratic” electoral votes, good enough to be elected president if the election were held today. This is not good news for either Trump or the Republican Party.
What makes matters worse for the Republican Party is that the Trump effect could before too long spread to congressional races in the House and the Senate, and in state races across the country as well.
No one is predicting that the Democratic Party will win a supermajority this year in either the House or the Senate. Nor is anyone predicting that the Democratic Party will sweep enough state legislatures to control 38 of them―the number needed to ratify a constitutional amendment. Neither of these is likely to happen in 2016.
But what today appears very likely is that the Democratic Party will make gains in both the House and the Senate, and also across many state legislatures where Democrats are currently out of power.
And if the Trump effect continues to damage the Republican brand nationally and in the states where the Party has historically been well represented, then it becomes likely that Clinton and the Democratic Party could build on their expected gains in 2016 with even bigger gains in the 2018 mid-term elections and in the subsequent 2020 elections.
The result could well be the amendment supermajority in Congress and in the states that Clinton will need to do what she has pledged: to pass a constitutional amendment to overturn Citizens United, the Supreme Court decision that has flooded the electoral process with more corporate and union money than ever before.
If Hillary Clinton succeeds makes good on her pledge, her amendment would be written into the Constitution as the country’s Twenty-Eighth Amendment. And it would become America’s first amendment in over a generation.