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The Uphill Battle Against Citizens United: Tricky Legal Terrain and No Easy Fixes

Is there anything in the years to come that can lead to a victory against the notorious Supreme Court decision?

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Overlooked Action: The States?

There is one other key piece of this discussion getting lost in the growing momentum behind proposals in Washington. That is what action can be taken in the states beyond sending e-mail blasts and resolutions to Congress telling them to act. It is incorrect to suggest that nothing short of a constitutional amendment, reconstituting the current Supreme Court, and electing a new congressional majority will have any meaningful impact and isn’t worth trying.  

Actions at the state level could be taken, said  Erwin Chemerinsky , founding dean of University of California Irvine School of Law and a respected constitutional scholar. Beyond passing more disclosure laws that report political spending, states could require shareholders to approve corporate political expenditures. “These kinds of laws have been adopted for unions. It’s time to do it with regard to corporations,” he said.   

Another idea is legislation barring a state contractor from spending money for partisan election activities, much like the federal  Hatch Act of 1939  limiting federal civil servants from a range of partisan activities. “There are a number of legislative things that can be done to lessen the ill effects of  Citizens United ,” Chemerinsky said. “The legislative changes are a lot more realistic than a constitutional change.”  

The Montana Supreme Court’s recent  ruling that its state had a compelling interest to regulate how corporations can raise and spend money in elections, and can establish that interest  within Supreme Court doctrine, is an example of a state taking this stance. The ruling raises questions that may  end up  before the U.S. Supreme Court. Similarly, the city of San Diego, California, has been in court defending its ban on corporate contributions to candidates after being sued by the Republican activist attorney who  brought the Citizens United  suit. On Friday, the U.S. District Court upheld the corporate donation ban, citing another Supreme Court decision, FEC v. Beaumont, that held that direct corporate donations to candidates could be regulated to prevent corruption. And the New York state legislature is poised to adopt a public financing regime, Weissman said.

Neither constitutional  scholars nor movement  activists view these stances as insignificant.  

But these steps involve moving beyond bumpersticker sloganeering and rhetoric beating up corporations. This growing movement needs to speak more clearly, elevate the discussion and educate Americans, who know very well what is wrong with American politics and want to hear about solutions that work.  

The Community Environmental Legal Defense Fund’s Price said today is a rare historic moment and worries that too much oxygen is being consumed by the focus on a federal amendment in Washington and not on changing local and state laws—or even state constitutions. After a half-hour interview, he offered a personal plea that deserves to be heeded by all in this progressive movement. 

“The liberal progressive line—and I have been there most of my life—sees a victory as being on the side of the angels, whether or not you actually create outcomes. I am tired of moral victories. I want some real ones.” 

Steven Rosenfeld covers democracy issues for AlterNet and is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).