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Movement To Overturn Citizens United Targets 2012 Ballot Measures

From America's earliest days, states have sent instructions to Congress on constitutional reforms.

As we head into the home stretch of the 2012 campaigns, from coast to coast voter frustration with negative campaign ads -- and the big money behind them -- is more than palpable. 

Billionaires such as Charles and David Koch are planning to spend more than $400 million to influence election outcomes. Casino magnate Sheldon Adelson and his wife Miriam say they’ll single-handedly spend at least $100 million. Never before have so few people had so great a role in determining how we will govern ourselves.

Sensing the public anger at seeing what is supposed to be our elections overtaken by fat cats, elected officials are beginning to react. A majority of legislators in eight states have called on Congress to support a constitutional amendment that would reverse the Supreme Court’s ruling in Citizens United v. FEC and other cases that equated unlimited spending on elections with free speech. Some 300 cities and towns have passed similar resolutions. 

Congress is responding. Twenty-nine senators are on record supporting a constitutional amendment. House Democratic Leader Nancy Pelosi has said that reversing Citizens United would be a top priority should her party regain control of the House. President Obama has voiced support. This progress is remarkable for a grassroots movement.

Yet we are still a long way from the two-thirds of both houses of Congress passing and sending a constitutional amendment to the states for ratification. And once that’s done, reformers will need 38 state legislatures to ratify the amendment. Because this path is difficult, it is hard for some reformers to embark upon. Better to focus upon shorter-term prospects, they say, such as improving disclosure of how money is spent on campaigns. Many progressive advocates are fighting hard for this needed reform, but just as a CT scan doesn’t cure a cancer, better knowledge of the role of money in politics won’t eliminate it. Ironically, doing too little or self-imposed restraint becomes a self-fulfilling prophesy under this school of thought.

Just because something is difficult does not mean it is not worth doing. When it comes to saving American democracy from the distortions of big money in politics, we may have no other option. Many serious minds have come to the conclusion that we cannot meaningfully govern ourselves if our elected representatives are more accountable to a tiny and unrepresentative slice of the electorate than they are to the public at large. When just over 1,000 donors giving $10,000 and above are responsible for 94% of super PAC donations, we no longer have a government of, by and for the people.

Last year, I suggested a strategy known as "voter instructions" as a means for reformers to overcome both the inertia of tackling a project that seems dauntingly large and the inherent self-interest of incumbents who are reluctant, or downright frightened to change those rules.

This strategy comes from the pages of American history and has worked before when citizens needed to force incumbents to change the rules by which they obtain power. In the years that followed our founding, instructions were used when states told representatives how to vote when creating today’s constitutional republic. They were used a century later, when Populists forced the U.S. Senate to support the 17th Amendment to our Constitution and face direct election by voters instead of being appointed by state legislatures.

Today, I have seen this voter instructions strategy adopted with far greater speed and scope than expected through a campaign that Common Cause has called Amend 2012. When the Supreme Court voided a law that had banned corporate spending in Montana elections that had been in place for more than 100 years, more than 40,000 Montanans countered by signing petitions to qualify what is now Initiative 166 for the November ballot. That proposal would boldly revoke corporate rights to "speak" in Montana campaigns by spending money.