The 5-4 corporate Supreme Court majority ruling in the 2009 Citizens United case that corporations are persons, with the same rights as natural persons to donate unlimited sums to support or oppose political candidates, was the straw that broke the camel's back. Large numbers of Americans finally realized that legal bribery is driving a stake into the heart of American democracy and concentrating both economic and political power in the richest 1% of our citizenry.
In the wake of Citizens United, there's been a growing popular backlash against this legal bribery. Several organizations have begun trying to reverse Citizens United by starting the arduous task of amending the constitution to overturn the Supreme Court's pernicious decision on corporate personhood.
But simply reversing Citizens United would not go far enough.
Surprisingly, the person who has done the most to crystallize where the movement to end the legal bribery at the heart of America's political system needs to go is a MSNBC news anchor Dylan Ratigan. Ratigan's "Get Money Out" campaign is not just about stopping corporate contributions. It's about stopping the wealthiest Americans--whether as individuals or organized into corporations--from legally bribing politicians to do their bidding.
To understand why Dylan Ratigan's "Get Money Out" campaign is getting it right, let's take a quick look at the history of Supreme Court decisions on campaign finance. The legalization of political bribery did not begin with Citizens United, although it made matters worse. The problem of legalized bribery goes back to the Supreme Court's 1976 decision in Buckley v Valeo that money equals speech under the First Amendment and that, as a result, Congress can make no law that caps the amount of money that a candidate may spend on getting elected.
While money has always played a role in politics, the amount of money that is contributed to political campaigns, parties, and so-called independent PACS exploded in the decades after Buckley v Valeo. It is now expected that Barack Obama and his Republican opponent will each raise and spend nearly $1 billion in the 2012 Presidential campaign and all political candidates for Federal office are expected to spend a total of $6 billion. It's impossible to raise this kind of money from thousands of small contributions--It's only possible to raise it from the wealthiest Americans who, as a result, have an undue influence on political decisions.
It's no wonder that the in three decades since Buckley v Valeo, the incomes of the bottom 99% of Americans stagnated and the incomes of the top 1% exploded. This growth in income disparity is the direct result of government policies, including tax policies and regulatory policies, designed to increase the wealth of the top 1% who fund most politicians' campaigns at the expense of the 99% who cannot afford to make large campaign contributions.
Citizens United made a bad situation worse. But it did not create the system of legalized bribery in American politics. It will take an overwhelming effort to amend the Constitution to end the system of legalized bribery. The effort isn't worth it if it just restores the system that existed two years ago before Citizens United was decided.
That's why Dylan Ratigan is right that what's needed is a mass citizen's movement to get money out of politics, which means not just ending corporate personhood, but ending the principle that spending unlimited sums of money on political campaigns is the same as speech and is protected by the 1st Amendment.
In the wake of Citizens United, several organizations have proposed Constitutional Amendments which take a variety of approaches to reducing or eliminating the role of money in politics:
• Public Citizen, the consumer advocacy organization first founded by Ralph Nader in 1971, has proposed a Constitutional Amendment to reverse Citizens United by declaring that corporations and other artificial business organizations, other than media corporations, are not persons with First Amendment rights of free speech under the First Amendment. (Public Citizen's proposed amendment does not address the issue of whether money equals speech.)
• Likewise, the organization Free Speech for People, founded by John Bonifaz, has proposed an Amendment stating that corporations, limited liability companies and similar organizations are not persons under the US Constitution and that Congress and the states have the right to regulate them. This proposed Amendment doesn't go as far as the one proposed by Public Citizen since it would require further action by Congress or state legislatures to limit the right of corporations to make political contributions.
• Harvard law professor Lawrence Lessig has proposed several versions of a possible Constitutional Amendment. His latest version has several parts: First, non-citizens would not be allowed to contribute to candidates for political office, which would presumably eliminate corporate contributions. Second, citizens could contribute up to $100 per election cycle to federal candidates, which would eliminate large contributions from wealthy individuals. Third, Congress would have the power to limit, but not ban so-called "independent political expenditures". Presumably this would continue to allow so-called PACS, which do not formally coordinate with a candidate, to expend large sums of money supporting or opposing candidates, subject to such reasonable limits as Congress might choose to enact. This leaves a large loophole for big money interests to influence federal elections. (Lessig has joined with an organization called Rootstrikers to organize public support for his proposed Amendment.)
• Democratic Senator Tom Udall (with co-sponsorship by Senators Bennett, Harkin, Durbin, Schumer, Merkley, Whitehouse, Begich and Shaheen) have sponsored a Constitutional Amendment that would give Congress and state legislatures the power to regulate the raising and spending of money with respect to elections, including setting limits on the amount of contributions to candidates and the amount of expenditures that may be made in support of or opposition to such candidates. This is the most far-reaching of the Amendments mentioned so far, since it gives Congress and the states the power to limit the amount of political contributions and expenditures by individuals as well as corporations directly to candidates as well as to "independent" PACS which support or oppose candidates. If it has a weakness, it's that the the Amendment is not self-executing since it does not directly set limits on the amount of political contributions and expenditures but leaves that to further action by Congress and State legislatures. The danger is that sitting politicians would craft laws to ensure their own reelection, just as politicians with the power to design electoral districts gerrymander them to ensure their own reelection.
• Dylan Ratigan has proposed the most far-reaching Amendment. First, it declares that campaign contribution to Federal candidates do not constitute "speech" under the Constitution, thus reversing Buckley v. Valeo. Second, it bans any Federal candidate from accepting money to run for office. Third, it makes Election Day a Federal holiday, making it easier for working people to vote. I personally like Ratigan's version of an Amendment since it directly overturns the Supreme Court decision that money equals speech, and is self-executing, since it bans campaign contributions without the need for further action by Congress. If I have any criticisms, it's (1) that it applies only to Federal and not state elections, and (2) I think small contributions, up to $250 per candidate per election cycle in 2011 dollars should be permitted.
But the biggest problem is that competing Amendments makes it all but impossible that any Amendment will ever be enacted. Amending the Constitution is a massive undertaking that will require a massive and unified movement of citizens outraged at the hijacking of American democracy by the richest 1%, just as a massive suffragette movement was required to pass the 19th Amendment giving women the vote.
To have any chance of winning, the various organizations and individuals working to amend the Constitution to get money out of politics must unite around a single Amendment and then fight like hell for as long as it takes to get it passed.
I propose that Public Citizen, Free Speech for People, Rootstrikers, Get Money Out, United Republic, and other similar organizations convene a conference to agree upon the essential elements of a single Constitutional Amendment that they will unify around. My personal proposal for such elements includes:
1. Corporations, limited liability companies, and other forms of business organizations, other than news organizations, are not people for purposes of the free speech protections of the First Amendment.
2. Financial and in-kind contributions directly or indirectly supporting candidates for election to Federal or state office shall not be considered speech for purposes of the First Amendment.
3. No citizen may contribute more than $250 (in 2011 dollars) per election cycle to directly or indirectly support or oppose the election of any candidate for Federal or state office.
4. Beyond these limited contributions, the cost of political campaigns will be funded in an amount to be determined by the Federal and applicable state governments.
5. Television and radio stations licensed by the Federal government will be required to give an equal amount of free air time to all candidates who generate at least 5% popular support in an average of major polls.
6. Election Day will be a national holiday.
But those are just my suggestions. The conference I am proposing would reach agreement on the elements of a Constitutional Amendment as its participants so choose.
Once the elements are agreed upon, a committee of Constitutional law experts would be appointed to draft the text of the Constitution Amendment incorporating those elements. I would propose NYU law professor Ronald Dworkin--who has spent decades making the legal case to get money out of politics--to chair such a committee.
After the Amendment is drafted, then the hard work begins--mobilizing millions of Americans to pressure Congress and state legislatures to pass the Amendment. It won't be fast, and it won't be easy. But nothing less can save American democracy.