Movement To Overturn Citizens United Targets 2012 Ballot Measures
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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.
More than 180,000 Coloradans followed Montana’s lead and qualified their own Amendment 65. Voters in more than a third of the towns in Massachusetts have also turned in petitions to qualify voter instruction ballot measures and city councils in San Francisco, Chicago and elsewhere have placed similar questions on the 2012 ballot. These explicitly instruct the congressional delegations from each jurisdiction to use all of their elected authority to support a federal constitutional amendment that would reverse the Citizens Unitedruling.
These ballot measures put reform opponents in a tight spot. Public opinion surveys have found only 15 percent of Democrats, 24 percent of Republicans, and 16 percent of Independents agree with the Citizen’s United ruling, according to a national poll taken immediately after the Supreme Court’s ruling. After being informed more about the ruling in another survey taken five months later, agreement dropped to 6 percent among Democrats, 17 percent among Republicans, and 13 percent among Independents. Opponents would rather avoid the issue than explain to the public why they believe corporations are people and that unlimited spending on political campaigns is supposedly free speech.
Rather than debate the substance of these measures, opponents have seized upon the argument that they are not legally binding and therefore not worth the time to take seriously. The lead argument against Amendment 65 in the Colorado voters guide is that “a state ballot measure cannot require elected representatives in Congress or the state legislature to support or vote for certain laws and policies. Therefore, the measure will have no practical effect.”
These arguments are factually wrong, but more importantly they misunderstand the very nature of public deliberation and consensus needed for the legitimacy, and power, of any government.
Factually, Initiative 166 in Montana establishes an official state policy that corporations are not people with constitutional rights. Amendment 65 in Colorado removes a preference for voluntary spending limits from the Colorado state constitution and instead states support for spending limits that are mandatory. These changes matter. They will prevent state courts from wrongly using state constitutions to artificially inflate the political power of corporate CEOs and billionaires at the expense of other citizens. For the moment, the fat cats still have the federal courts on their side, but should that ever change these policy changes in Montana and Colorado will prevent the wealthiest 1 percent from using state courts to entrench their power.
Beyond those actual policy changes, the ballot measures “instruct” or “charge” elected officials to carry them out by all means possible, including amending the U.S. Constitution to correct the misinterpretations of narrow Supreme Court majorities in Citizens United and other cases. They are carefully worded to do more than advise or urge legislators. When your boss instructs you do to something, it is more than a subtle suggestion. Just as a worker who fails to carry out directions from an employer risks getting fired, so too would legislators who disregard explicit instructions from their constituents.
The practice of constituent instructions began in England and was used by nearly all of the early American colonies prior to Independence. Colonists gathered in town meetings to both elect representatives to legislative assemblies but also instruct those representatives on certain positions to take.
The wording of instructions from Boston to its representatives in 1764 is illustrative of the practice at the time. ”We, the freeholders of the town, have delegated you the power of acting in our public concerns, in general as your prudence shall direct you, reserving to ourselves the constitutional right of expressing our minds and giving you such instructions upon important subjects as at any time we may judge proper.”
Most of the delegates at the first Continental Congress of 1774 were bound by instructions from their respective states. After hostilities broke out with England, at least nine of the 13 colonies responded by instructing their delegates to the Continental Congress to declare independence. Constituent instructions guided the drafting of the Articles of Confederation, the subsequent drafting and ratification of the U.S. Constitution, and the passage of the Bill of Rights.
Indeed, the use of instructions, also known as enjoining a representative, was specifically contemplated as a means of amending the Constitution by its framers. John Dickinson of Delaware defended Article V during ratification debates by noting that the Constitution could be amended per instructions from constituents:
Thus, by a gradual progress, we may from time to time introduce every improvement in our constitution, that shall be suitable to our situation. For this purpose, it may perhaps be advisable, for every state, as it sees occasion, to form with the utmost deliberation, drafts of alterations respectively required by them, and to enjoin their representatives, to employ every proper method to obtain a ratification.
Early Americans used constituent instructions to bring about a constitutional amendment to reverse a Supreme Court decision they felt overstepped its bounds, just as most Americans feel about today’s court and Citizens United. Just weeks after the 1793 Chisolm v Georgia decision, arguably the Court’s first major ruling which found that federal courts had jurisdiction to hear disputes between private citizens and the states, legislators in Connecticut, Massachusetts, North Carolina and Virginia instructed their U.S. Senators to seek passage of a constitutional amendment to deny federal courts jurisdiction when citizens sued other states. Congress complied with these instructions and proposed the 11th Amendment, which the states quickly ratified.
The 12th Amendment, dealing with presidential and vice presidential elections, was also prompted by voter instructions from Massachusetts, New Hampshire, New York, and Vermont. During this time period, as voters were no longer directly assembling to elect members of Congress and instead using ballots and regular elections, instructions usually took the form of state legislatures instructing their U.S. Senators.
During the 20th century, the advent of the citizen initiative and referendum process in many states created a vehicle for voters to once again directly instruct their representatives. As noted earlier, direct voter instructions were an essential component to the successful passage of the 17th Amendment to provide for direct election of U.S. Senators.
Instruction ballot measures also influenced the debate over prohibition. In November 1928, voters in 36 of 40 Massachusetts state senatorial districts considered the question “shall the senator from this district be instructed to vote for a resolution requesting Congress to take action for the repeal of the 18th Amendment to the Constitution of the United States, known as the prohibition amendment?” All but two districts favored the question, with an overall vote of 63 percent in favor. Similarly, in November 1932, Connecticut voters adopted by 7-to-1 margin a proposal petitioning congress to end prohibition. Wyoming voters by 2-to-1 margin sent a “memorial” to congress calling for repeal of prohibition. In Louisiana, voters requested Congress call a constitutional convention to propose repeal of prohibition. After Congress proposed the 21st amendment, on July 21, 1933 Oregon voters voted 65 percent in favor of instructing the delegates to the state convention to ratify the amendment to support it. Seventeen days later, the Oregon convention did just that.
Instructions have never been legally binding upon representatives and the first Congress rejected a provision in what would have become the First Amendment to make them legally binding primarily because of difficulties in enforcing this. For instance, members questioned whether or not a legislator’s vote would still count if they violated their instructions, or whether or not they would be subject to immediate recall. Moreover, the Framers realized that the right to petition our government provided adequate protection for voters to instruct legislators and they could not contemplate a world in which representatives would fail to honor those instructions.
Twentieth-century attempts to make voter instruction measures binding effectively failed. A 1984 Montana ballot measure sanctioned the Montana Legislature by denying adjournment and withholding pay until it passed a measure calling for a constitutional convention to adopt a balanced budget amendment to the U.S. Constitution. The Montana Supreme Court declared the ballot measure an unconstitutional interference by direct democracy with the power of representative democracy and removed the measure from the ballot. Ballot measures in more than 10 states in the mid-1990s instructed Congress to support a specific term-limits amendment and punished those who did not by placing the words “DISREGARDED VOTER INSTRUCTIONS” in bold letters under their names on their re-election ballots. The federal courts rejected all of these enforcement mechanisms, arguing that voter instructions must remain legally non-binding.
But despite their limited nature, elected officials historically took instructions quite seriously and typically resigned from office if they felt they could not in good conscience carry them out. Two future presidents, John Quincy Adams and John Tyler resigned from the Senate when their personal views conflicted with instructions they received from their state legislatures.
Aside from the “scarlet letter” ballot notations, the 1990s ballot initiatives around term limits carried great weight with members of Congress. Congressional members from the term limit instructions states took great care to comply with these instructions and often cited them on the floor of the House as the reason they supported or opposed various term limits proposals.
The real question we should be asking about the Amend 2012 ballot measures is not whether they will be legally binding, but if they will be morally binding, or binding in effect. The debate over the Equal Rights Amendment in the 1970s did not prove to be legally binding as the text of the ERA was not officially placed into our Constitution. Nevertheless, the women’s movement won the values debate and profoundly changed American society in practice as a result of that amendment process. The pay gap between women and men for comparable jobs has decreased, women now serve in the armed forces (a principle objection to passage of the ERA), and the concept that women and men deserve equal treatment under the law is now so entrenched that not even the Tea Party is willing to challenge it.
There was nothing legally binding when tens of thousands of protesters stood in Tahir Square in Cairo, Egypt, beginning what became known as the Arab Spring. Nor was there any enforceable legal process triggered when initially hundreds and then thousands of people thronged Zuccotti Park in Manhattan in what became Occupy Wall Street. These protests changed society in a more real way than many words on pieces of paper that comprise “binding” legal doctrine. The Amend 2012 voter instruction measures are best understood as a structured form of protest, which can indeed bind us together and forge lasting social change.
Our laws, indeed our Constitution, are only binding in effect to the extent that real people will act upon them. The words of our Constitution forbade Jim Crow laws that brought economic and political apartheid to the South long after the Civil war amendments legally settled the issue. It took activists who risked their lives and ultimately federal troops ordered in to desegregate schools and ensure voting rights to all citizens. Our Constitution forbids imprisonment without due process, yet that didn’t stop the government from locking tens of thousands of U.S. citizens of Japanese descent in internment camps during World War II who had committed no crime.
The “binding” laws of our land did not prevent a United States president from ordering the break-in of his opponent’s offices in the Watergate hotel, or his lying to cover up that fact. Only when members of Nixon’s own political party in Congress mustered the courage to take action did our laws become binding and force the removal of a sitting president. Current federal law requires federal judges to truthfully report their finances, yet this requirement did not bind Clarence Thomas who for years submitted false disclosure forms and has faced no sanction for his defiance.
In short, words do not bind. Truth does. It is a mistake for reform opponents to underestimate Amend 2012 voter instructions measures based upon the legally binding effect of their words. It is the movement that is finding its voice behind those words that will determine if our society changes and if we can indeed restore a government of the people, by the people and for the people.