THE BLOG
08/10/2011 05:38 pm ET Updated Oct 10, 2011

Voters Can Fix the Court's Citizens United Mistake

With the 2012 presidential campaign now fully underway, Americans are witnessing firsthand the damage wrought by the Supreme Court's ruling in Citizens United vs. Federal Elections Commission. The decision reversed previous holdings in support of laws that block CEO's from spending their shareholders' and customers' money on politics. Fortunately, we need look no further than our own history for the means to correct this travesty.

We have already seen Koch Industries convene a gathering of CEO's where some $88 million was pledged toward influencing the 2012 elections. The Chamber of Commerce will likely surpass the $75 million it spent in 2010 and partisan operatives including Republican Karl Rove and Democrat David Brock have set up so-called Super-PACs to get into the unlimited corporate money game as well.

Unlike people, corporations have no inalienable right to life, liberty, and the pursuit of happiness. Rather, We the People have acted through our government to establish corporations as legal entities for very specific and important economic purposes. To encourage investment in corporations, we grant them limited liability -- so if you own stock in a corporation that kills someone, you may lose the value of your shares but you won't face personal manslaughter charges.

Instead of adhering to the letter of our Constitution, five members of the current Supreme Court have edited our founding document to give corporations constitutional protections, including freedom of speech. And because they equate money with speech, that allows corporations to spend whatever they want on political advertising, the justices say. Most Americans disagree with this decision. Yet, does the Supreme Court get the final say?

Fortunately, the answer is no. When previous Supreme Courts ruled that slavery and poll taxes were legal under the Constitution, Americans responded by passing constitutional amendments. We did the same when the Court struck down voting rights for 18-year-olds as well as the establishment of the income tax.

Given that our next Congress will be elected under the heavy influence of corporate campaign spending, how can citizens get two-thirds of the members of both houses of Congress to support a constitutional amendment that would change the rules by which they were chosen?

Our challenge is similar to that of citizens a century ago who pushed for direct election of U.S. senators. They needed two-thirds of U.S. senators to change the way they came into power from legislative appointment to direct election. Moreover, they then needed to convince three-quarters of state legislatures to give up their power to appoint U.S. Senators.

One technique that worked then was called Voter Instructions. Voters passed ballot measures instructing state legislators to appoint to the Senate the candidate who had won in a non-binding popular election in that state. Legislators followed these instructions, and the Senators who were thus appointed had nothing to fear from direct election. Those senators became supporters of what ultimately became the 17th Amendment.

The tradition of constituent instructions dates to the pre-Revolutionary War era. For example, colonists sent delegates to the Continental Congress with instructions on a number of matters, even orders to support the Declaration of Independence. The practice continued under the Articles of Confederation and during the Philadelphia Constitutional Convention of 1787.

While constituent instructions have never been considered legally binding, they have historically carried great force. Some of our Founding Fathers, including John Quincy Adams, resigned their offices rather than disobey instructions from their constituents.

Today, 24 states have a mechanism for voter initiatives, allowing citizens to change laws directly or demand action by their legislators. In other states, legislatures or local governments may submit issues to the voters for action in a binding or advisory referendum. Voters in Dane County, Wisconsin voted this spring by a margin of 78% to voice support a constitutional amendment stating that political spending is not the equivalent of free speech and that corporations are not entitled to constitutional rights. The city council of Boulder, Colorado will soon decide whether to schedule a similar vote this fall. The Hawaiian legislature has passed a resolution calling on Congress to pass such an amendment.

By taking these requests for action a step further and embracing our proud and long tradition of voter instructions, citizens can indeed take matters away from the Supreme Court and into our own hands. Whether we will, of course, is up to us.