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Why Only A Constitution Amendment Can Rescue American Democracy

"A constitutional amendment is democratic self-defense."

(Editor's note. On Tuesday afternoon, July 24, the Senate Judiciary Committee will be holding a webcast hearing on various proposals to amend the U.S. Constitution to address the problems created by the excessive influence and spending of wealthy individuals and corporate interests in American elections. This essay offers perspective on the issues in play and various reform proposals.)

The American people have been forced several times to amend the Constitution to reverse the damage caused by the Supreme Court when it acts in collusion with the enemies of social justice and popular democracy.

In 1857, in the Dred Scott decision, the Supreme Court ruled that white supremacy was built into the Constitution as the original intent of the Framers, that African-Americans therefore could not be citizens entitled to bring suit in federal court, and that African-Americans had no rights that the white man was bound to respect. After the Civil War, the Radical Republicans moved to reverse that infamous decision through the 13 th, 14 th and 15 th Amendments, which abolished slavery, proclaimed equal protection and due process under the laws, and protected the right to vote of all citizens regardless of race.

In 1875, in Minor v. Hapersett, the Court ruled that the Equal Protection Clause did not protect the right of women to vote, declaring that the domestic sphere was women's proper place. In response, the suffragists mobilized campaigns in the state legislatures and Congress, committed civil disobedience by chaining themselves to the White House fence, and accomplished passage in 1920 of the 19 th Amendment.

In 1937, in Breedlove v. Suttles, the Court rejected an Equal Protection attack on the imposition of poll taxes as a condition for voting. This decision cemented the plutocratic and racist practice in many Southern states but the Civil Rights Movement finally won passage of the 24 th Amendment in 1964 banning poll taxes in federal elections. Still, many states continued to charge poll taxes for voting in state elections, a practice that did not end until the Court read the 24 th Amendment as changing the meaning of Equal Protection and struck it down in Harper v. Virginia Board of Elections (1966).

Indeed, most of the 17 constitutional amendments passed since the Bill of Rights have been franchise-expanding and democracy-reinforcing provisions that strengthen the progress of what Lincoln called “government of the people, by the people and for the people.”

Of the Corporations, By the Corporations, For the Corporations

Now, in the bitterly divided Citizens United decision (2010), five Justices on the Roberts Court have held that corporations have the right to spend unlimited sums of money promoting or disparaging political candidates. This decision – built on the dangerous fallacy that state-chartered corporations enjoy the same political free speech rights as the people – strikes another dangerous blow against popular democracy. It is a blueprint for government of the big corporations, by the big corporations and for the big corporations.

Citizens United upended the bedrock understanding, more than a century old, that corporations, because of their “artificial” nature and all of the legal benefits bestowed upon them, have no “money speech” rights in political campaigns. The decision capsized at least four prior Court decisions, wiped out dozens of federal and state laws banning corporate political expenditures that go back more than sixty years, and undermined the rationale for the federal ban on corporations giving contributions directly to candidates that began with the Tilman Act in 1907.

The new doctrine is that, when it comes to campaign finance rights, the “identity of the speaker” is wholly irrelevant, and corporations have a First Amendment right to spend freely in politics because the speech they purvey is intrinsically valuable. Followed faithfully to its logic, this amazing doctrine protecting corporate political spending in the name of speech by citizens will end up not only toppling the ban on direct corporate contributions to candidate campaigns but also empowering churches, non-profit corporations, aliens, cities (municipal corporations), states and foreign corporations to spend their treasury money on behalf of political candidates too, both as campaign spenders and campaign donors. If the identity of the speaker is irrelevant, well, then, the identity of the speaker is irrelevant – unless, of course, this triumphantly proclaimed categorical doctrine is, like the decision in Bush v. Gore, actually a one-way ticket good only for special persons and classes favored by the ruling faction on the Court.