With Gorsuch Confirmed, Only An Amendment Can Overturn Citizens United

04/10/2017 11:25 am ET Updated Apr 10, 2017
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Since the Supreme Court’s poorly reasoned and highly unpopular Citizens United v. FEC decision in 2010, more than a dozen different constitutional amendments have been proposed in Congress to effectively overturn it. But many of the “adults” in the political establishment—Congressional staffers and campaign finance law scholars—have refused to support those proposals or even take them seriously.

An amendment would never succeed, they said. Besides, once another left-leaning justice is appointed to the Supreme Court, likely by President Hillary Clinton, the Court will reverse the decision on its own. So settle down, liberal activists, because the adults who know better will take care of things soon enough.

But after Trump appointee Neil Gorsuch was confirmed to fill deceased Justice Antonin Scalia’s seat on the Supreme Court last week, it does not appear that “soon enough” will happen in the foreseeable future. Gorsuch will give the Court a conservative tilt for years, if not decades, and the chances of the Court overturning Citizens United on its own just went from slim to minuscule. Unlikely as it may be, a constitutional amendment is now the most realistic way to fix our dysfunctional federal campaign system. Do not let the skeptics tell you it cannot be done.

Yes, We Can Pass A Constitutional Amendment

Passing a constitutional amendment will not be easy, but it also is not impossible, as many naysayers are quick to assume. Polls consistently show that over 70 percent of both Democrats and Republicans want Citizens United overturned, and more than a dozen states have already called for an amendment to address the decision in one way or another. Nearly every generation of Americans except for this one has passed a constitutional amendment—often without the widespread public consensus that already supports overturning Citizens United.

Most notably, the Eighteenth Amendment that prohibited the manufacture, sale, or transportation of alcohol was ratified in 1920 despite being so unpopular that it was widely disregarded and ultimately repealed just 13 years later. If a persistent minority could persuade our elected officials to ban something as popular as alcohol in 1919, surely it is possible to convince our elected officials to take a stand against something as unpopular as big money in politics in 2017. Many members of Congress are already on board.

Over one hundred Congressional representatives have already cosponsored an at least one amendment proposal to undo the damage done by Citizens United. Getting the support of enough representatives to successfully pass an amendment is simply a matter of persistence and math. Any Congressional representatives who do not support an amendment to overturn Citizens United must either be persuaded to see the light, or replaced with representatives who will. Passing an amendment is only impossible if hard work and electing new representatives is impossible. But success will require the movement for an amendment to take things up a notch.

We Must Be Smart, Realistic, and Relentless

Now that an amendment to overturn Citizens United is more necessary than ever, the movement of organizations, activists, and political leaders that supports getting big money out of politics must rise to the occasion with renewed energy and pragmatism. For too long the movement has been alternatively timid or unrealistic.

Hard as this may be to believe, the current leading proposal in Congress to overturn Citizens United does not actually overturn Citizens United. The Democracy For All Amendment would make it possible for Congress to overturn the decision at some point in the future, but it does not actually overturn the decision on its own. Yes, leave it to Congress to rally behind an amendment that does not do the one thing the public actually cares about.

Other proposals like Move to Amend’s We The People Amendment that seek to abolish all corporate constitutional rights are flawed in a different way. Considering that any amendment must be ratified by at least 38 state legislatures, many of which lean Republican, an amendment that abolishes corporate constitutional rights has about as much chance of success as an amendment that gives free Priuses to doctors who perform abortions. Using valuable volunteer energy to support such an amendment is a poor use of precious resources.

At the state level, some activists have put their faith in a plan from Wolf PAC to call for an amendment through an Article V Convention—when 34 states call for a constitutional convention to propose the same amendments we are theoretically supposed to have one. Though no Article V Convention has successfully been called in our nation’s history, the plan does sound promising on paper. Unfortunately, it looks less likely to succeed with each passing day.

Not only do Wolf PAC’s vague convention calls lack a concrete amendment proposal, but the organization has had limited success getting states to call for a convention. Five deep blue states have done so in the nearly six years since the organization’s founding, but at that pace of less than one state per year, an Article V Convention would only occur around 2050. By that time the Supreme Court and its thirteen cyborg justices probably will have overturned Citizens United on its own. Worse still is that Vermont, one of the states that initially called for an Article V Convention, is in the process of rescinding that call, so the plan may actually be moving backwards.

None of the aforementioned half-baked efforts are going to get the job done.

The Way Forward

Last year I launched a new nonprofit, Citizens Take Action, with the goal of bringing more organization and collaboration to the movement to get big money out of politics. Our amendment proposal—the Restore Democracy Amendment—would effectively overturn Citizens United and more importantly, it has a legitimate chance of gaining bipartisan support because it goes after big money from both corporations and unions without seeking to abolish all corporate constitutional rights. The amendment was designed to offer the best combination of impact, clarity, and passability.

Our goal is to get activists, organizations, and political leaders to unite behind the Restore Democracy Amendment so that together we can put enough pressure on our elected officials to push the amendment across the finish line. Uniting behind one proposal like the Restore Democracy Amendment will be require uncharacteristic compromise from many organizations within the movement, but that compromise is much needed since a united movement offers the greatest chance of success.

With Gorsuch’s confirmation, there is no question that an amendment to overturn Citizens United is more necessary than ever. The question is whether or not those of us who want big money out of politics can work hard enough and be selfless enough to make that amendment a reality.

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