Watch Out Plutocrats, the Progressive Pro-Democracy Movement Is Savvy and Gearing Up to Take on Citizens United
It didn’t look like the movie Lincoln, which opened the same weekend. Instead of crusty men in musty rooms, half the speakers were women and the setting was a bright modern law school auditorium. But the challenge at hand was equally great. In Lincoln’s day, it was the 13th Amendment to end slavery. Today, it's repairing American democracy for the 21st century.
Last Saturday in Los Angeles saw the most detailed, ambitious and encouraging discussion of exactly how to approach campaign finance and lobbying reform that I’ve seen in two decades of reporting on the decline of American democracy. There were constitutional solutions—not one but several—for the problems created by the Supreme Court. There was a long list of what Congress, the White House, federal agencies and state legislatures could do now. And there was growing evidence that millions of Americans of all political stripes want a renewed democracy—as surely as those multitudes who waited hours to vote on November 6.
A century ago, Progressive reformers reshaped American democracy by using every avenue available to them to take away power from that era's robber barons and political insiders. Today, after the most expensive American election ever, democracy advocates have launched a modern counterpart with a bold agenda, new strategies, new coalitions and a growing grassroots base dedicated to unwinding political corruption’s many facets.
“A cancer does not cure itself. And this won’t be cured by dinky little reforms, tiny little ideas, tinkering, crumbs at the table, who are being proposed by people who think if we just do a little switch we will magically change this system,” said Harvard Law School’s Larry Lessig, opening A 28th Amendment? conference at UCLA Law School. “What it needs is a movement unlike any we’ve seen since the Civil Rights Movement or the Progressive Movement, taking on a corruption greater than anything we have seen since we ousted George III.”
“It’s not just money in politics—that’s one thing we have to fix—no question; we will not survive as a democracy, as a republic if we don’t fix that,” said Jeffrey Clements, co-founder of FreeSpeechForPeople. “But we will not survive as an Earth, as a democracy, as a republic, if we don’t figure out how to make corporations work for the people and be able to democratically, small ‘d,’ decide on the powers, rights, duties and privileges that these massive global empires, which is what they are now, have in our democracy.”
What was most striking about the UCLA gathering was how participants took the two rallying cries that have fueled nationwide protests, "Money is not speech" and "Corporations are not people," and analyzed and turned them into a deepening array of constitutional and other remedies that not only target democracy’s building blocks, but are backed up by public pressure. That grassroots resolve includes 300 municipalities and nine legislatures passing resolutions since 2010 calling for a constitutional amendment, followed this month by super-majorities of Montana and Colorado voters backing it.
The thread uniting these efforts is excising the “cancer” that Lessig refers to, which is the many ways that private money (from individuals or business entities) corrupts elections, lawmaking and political life. This is not a new story and is how the system corrupts decent people. That dynamic starts with how candidates must raise private money to run for public office. It affects who they talk to, what they say or avoid in campaigns, and how winners interact with their patrons afterward—especially, as seen in what laws they back or block. Americans know what’s going on, the Gallup poll found this July, when 87 percent replied that “reducing corruption in federal government” was their second top concern. Tellingly, both major party presidential candidates avoided democractic reforms, just as they did with climate change, cited by 52 percent of Americans.
“There is a systemic problem here,” Lessig said, adding that the country's founders also wrestled with corruption. “The funders are not the people. There is a systemic solution. Make the funders the people.”
But Lessig wasn’t at the 28th Amendment conference to just push for public financing, although that was one solution raised that targeted a specific part of the process. He came to inspire 200 organizers, lawyers, scholars and media to push states to require that Congress convene a constitutional convention to deal with democracy issues. That tactic, more so than having legislatures tell Congress to draft an amendment to reverse the Supreme Court’s Citizens United ruling, will push Congress to act, Lessig said, as it did with the 17th Amendment, which made the U.S. Senate an elected body.
Lessig’s remarks launched a very different conversation from what was happening in reform circles just months ago, let alone since the mid-1990s when the last big burst of grassroots activism propelled several states to adopt public financing schemes. After the rise of the Tea Party in 2009, the Occupy movement in 2010, and hundreds of resolutions urging Congress to write an amendment to reverse Citizens United, a dozen amendments were introduced in Congress. But earlier this year, factions with different approaches were competing for Congress’ attention. Meanwhile, most constitutional scholars were silent. There was little new academic analysis of reformers’ ideas. And ex-corporate lawyers sympathetic to the movement’s goals rued its leaders and media champions seemed unwilling to take the discussion beyond bumper stickers.
That’s now changed in very substantive ways. What’s been brewing behind closed doors came into view at the 28th Amendment Conference. First was the recognition that at least two amendments are needed—one dealing with a runaway Supreme Court and a second dealing with constitutional speech rights awarded to business entities. There also was the recognition that Lessig’s constitutional convention could be a fantastic organizing tool to propel what already is sizeable grassroots activism to a new orbit. There was a sense that a do-everything approach includes pushing Congress, the executive branch and federal regulators to enact serious reforms now, under existing Supreme Court doctrine. And when it comes to parsing and drafting legal language for all these efforts, scholars are joining and refining the discussion, lifting it to new and more precise levels.
“You have a lot of different experts—progressive groups doing this, Republican groups doing that, and trans-partisan groups doing this and that,” said Lisa Graves, an attorney and executive director of the Center for Media and Democracy. Graves moderated a panel on what constitutional rights awarded by courts to corporations are, and are not, harming American democracy. “Overall, what you’re hoping to build is a movement for change that gets to a tipping point that enables a lot of more things to be possible.”
“This is a movement moment,” said Marge Baker, People for the American Way’s executive vice president. “We’ve come together loosely under the banner we’ve called United4ThePeople.org… But the one principle that unites these 135 organizations, with literally tens of millions of members across the country, is that we believe that this problem is so serious that it needs a constitutional remedy—or remedies.”
Not Just One Constitutional Amendment
Today’s democracy reform movement is best known by the two slogans seen at Occupy protests, grassroot efforts led by the Move To Amend coalition and like-minded groups and across the blogosphere—"Money is not speech" and "Corporations are not people."
The slogans are shorthand for two different legal issues and challenges, that, until now, many reformers blurred or sought to combine. The paradigm shift at the 28th Amendment conference was not just the conclusion that each should become its own amendment. As important, the analysis and discussion surrounding the goals and legal workings of each was growing and was more refined and politically astute than earlier this year.
The first slogan, "Money is not speech," seeks to get big money out of elections by newly empowering Congress to decide how money can be raised and spent in campaigns. This addresses the numerous ways the Supreme Court (and lower federal courts) have taken that power away from Congress, starting with a 1976 ruling, Buckley v. Valeo, that said spending money is speech and cannot be limited. Equating spening money as the highest form of political speech protected by the U.S. Constitution arguably has led to every big loophole and abuse in campaigns in recent decades. It also created a legal doctrine that has continued to unfold that’s deregulated spending limits, including in Citizens United which freed corporations and unions to spend unlimited sums in campaigns not tied to a candidate. (In 2012, Americans saw those "independent" efforts very much take sides.)
One intriguing presentation by California Common Cause’s Derek Cressman discussed how the legal wording in reform efforts could be more precise to deal with the spending abuses that Buckley unleashed. It’s not good enough to say that Congress can “regulate spending,” as congressional proposals now state, Cressman said, because that could invite abuse by lawmakers. Instead, he suggested empowering Congress to “limit” the category of messaging that’s most harmful to democractic debate, which is paid “advertising.”
That distinction might reel in wealthy partisans who brazenly funded 2012’s super PACs (Lessig said 132 people gave 60 percent of the $631 million raised) or who hide behind opaque front groups led by political consultants. But it wouldn’t stop an individual from personally speaking out under reasonable spending caps for indivduals, Cressman said.
A second constitutional amendment concerns corporate personhood issues, as expressed by the slogan, “Corporations are not people.” This is shorthand for an array of corporate power abuses that go beyond electioneering by big businesses directly or their agents—whether longtime trade associations like the U.S. Chamber of Commerce or new groups abusing their non-profit tax status. It also concerns commercial speech rights awarded by federal courts that have blocked government-backed health labels on cigarettes boxes, milk containers and cellphones.
This slogan has been the most popular cry at the grassroots, reflecting the grievances average Americans feel about their shrinking power when dealing with large institutions, particularly big businesses. The Move To Amend coalition, with roots in California’s Green Party, has pushed hundreds of local governments to adopt resolutions calling for an amendment that states business entities “shall have no rights under this Constitution.” That’s been very controversial for several reasons. It is radical, sweeping and some say punitive. Those factors have prompted some legal scholars and ex-corporate lawyers to conclude that it’s more symbolic than serious—or just not workable after more than 200 years of state and federal legal precedent. But that view also shifted at the conference.
“I want to talk about why we need an amendment that overturns corporate rights in our Constitution, and as I said, they’re not there,” said Clements, noting the Constitution did not refer to corporations but to people. “There are a whole lot of complicated cases that will come to the Supreme Court if we no longer allow corporations to take our rights and turn them against us. There will still be cases involving media corporations, non-profits—cases involving corporate entities. But the Court will be required to look for a human being who has a human rights claim—and sometimes they will find it.”
Where this argument jumped to a new level came after parsing the categories of corporate rights that have been granted by the courts. Several scholars wrote papers and discussed what kinds of constitutional rights corporations now have, and why courts have awarded and expanded those rights over time.
Loyola Law School’s Elizabeth Pollman said they fall into three large areas—contracts and property; trials and searches; and political and commercial speech. Democracy reformers were mostly concerned about speech rights, she said. Cornel Law School’s Lynn Stout countered that it would not just be hard to unwind rights that the courts and state constitutions have granted, but unwise because treating corporations as legal persons allows all levels of government to regulate them. And UCLA Law School’s Adam Winkler said corporations don’t have the same First Amendment rights as people, though corporate lobbyists and the Supreme Court have confused that and taken incoherent stands over the years.
But rather than getting lost in the weeds, these and other analyses led to an intriguing path that narrowed the focus but approached Clements' standard—that the only constitutional rights awarded to corporations should be for entities that are not involved in making money or protecting profits. San Francisco non-profit attorney Greg Colvin said that stripping corporations of First Amendment speech rights might provoke big business’ defenders to claim First Amendment rights of assembly. But Colvin had a way around that.
“You could prevent that from happening in the careful drafting of a constitutional amendment that said not only are we not going to permit corporations to have those rights under the U.S. Constitution—they may have those rights under state statutes and state Constitutions—but we're going to limit associational rights to individuals who come together for political and social purposes, not for the purposes of capital gain,” he said, saying the tax code makes these distinctions and political reformers could use them.
Beyond this discussion’s fine print is a larger point: the effort by progressive attorneys to curb excessive corporate constitutional power is not being dismissed, it is being taken seriously, parsed by a growing array of legal experts and gaining credibility. This wasn’t happening six months ago—and certainly not in public. Proponents of ending corporate personhood like Clements said there was no reason there could not be more than one amendment, citing the Progressive Movement’s precedent a century ago.
“The Progressive Era, which was again, Republicans and Democrats coming together—Teddy Roosevelt, Woodrow Wilson, people in both parties—they did four amendments in 10 years, four constitutional amendments. We don’t have to do just one,” he said. “And remember they also did all that other statutory reforms; antitrust laws, the earliest environmental laws, worker safety laws. They knew they were renewing American democracy for a new century to fulfill that visons of government for, of and by the people. That’s where we are.”
A ‘Do Everything’ Strategy—Starting Now
No one at the 28th Amendment conference was under any illusion that a new Constitution will arrive overnight. Indeed, Harvard’s Lessig doesn’t believe any amendment will go anywhere unless a “cross-partisan” majority supports it—which is why he emphasizes anti-corruption writings by America’s founders, such as James Madison’s Federalist 52, which is popular in Tea Party circles. Lessig believes the best way to move past today’s fractious political landscape is to push states to demand Congress convene an Article Five convention, as it depends on cultivating grassroots support, a development that in itself could change political discourse from today’s “business model” where partisans villify opponents.
“We have to learn to speak so the other side can hear,” he said.
(There are two paths to amending the U.S. Constitution. The first requires Congress to draft and support a proposal by a two-thirds vote, or draft an amendment at a convention called by two-thirds of the states. That proposal must be ratified by three-quarters of state Legislatures or by three-fourths of state ratifying conventions.)
But while the constitutional strategy unfolds, Lessig and other legal celebrities, notably Stephen Colbert’s election lawyer, the liberal Republican and former Federal Election Commission Chair, Trevor Potter, have developed what they call the “American Anti-Corruption Act” to focus on what Congress and the federal government could now do to change the way fundraising shapes American democracy and political culture.
“I don’t think any of us up here see this as a debate between a constitutional option and legislative options, or between various legislative options,” Potter said. “As we talk about the need for a constitutional amendment, which would change the entire landscape, we have to recognize that that is a long process. The point of the American Anti-Corruption Act was to show that it is possible to change the process in really significant ways that would revolutionize Washington—now.”
“That’s not to say we shouldn’t be looking to the amendment and working for an amendment,” he continued, opening his talk. “But to say that there are a lot of things we can do—realistically, perhaps more than Congress will ever do—but that could be done constitutionally if we had enough pressure on Congress and the will to do it.”
Potter said the reform package he helped draft had input from across the political spectrum and from repentant political insiders: “Some Tea Party folks, some Occupy Wall Street folks, from some convicted felons—that would be Jack Abramoff, who basically said, ‘Stop me before I kill or lobby again.’ That’s important, because Jack can say, ‘Look, I know how it’s done. And when we were talking about the drafting, he can say, ‘That doesn’t go far enough, because I can figure out how to get around that.’”
This proposal tackles conflicts of interest, which the Supreme Court recognized is a basis for regulating campaigns, Potter said. The foremost conflict is between people who are funding campaigns or lobbying, and a candidate or official who needs campaign money and is voting on bills. “Whether is it a shakedown by the member or an attempt to buy results by the lobbyist, you end up at the same place, which is they are dependent on the lobbyist, or the people who hire the lobbyist and that world, rather than everyone else.”
The first part of this proposal would prevent members of Congress from raising money from people who lobby them. Then, lobbyists could only make small donations—$500—to protect their First Amendment rights, but cannot round up checks for officeholders. The people who hire lobbyists can’t do that either. That would change how Congress raises money. Further, members of Congress could not become lobbyists for five years after leaving office, which would end the so-called revolving door. Today, about half of Congress become lobbyists after losing re-election or resigning in office. “Capitol Hill has become a farm league for [Washington’s] K Street,” Lessig said.
On the campaign finance side, it would create an alternative way to finance elections—in contrast to the 2012 campaign where one-third of 1 percent of all Americans gave $200 to federal campaigns and political parties. Here, the other 99 percent would get an annual tax credit of $100 that they could give to candidates or to other political committees—in exchange for the recipients agreeing to cap donations from single contributors. That way of paying for public financing appeals to Republicans, Potter said. “If we can get here, this changes the system more than anything else.” Indeed, of the 24 states that have a form of public financing, the red states do it through a tax check-off.
The package also has transparency on a whole range of activities where partisans were hiding from voters in 2012. It includes the Disclose Act, which died on Capital Hill, and requires anyone who spends money for an election to reveal it. Anyone who is paid to help a lobbyist has to register. Finally, it has an enforcement piece, empowering the FEC to do what Congress intended, but adding a seventh member to break partisan deadlocks.
The Act hasn’t been introduced in Congress. Potter said its authors want to first gather a million signatures before finding sponsors on Capitol Hill. “This is not going to happen tomorrow. So, what are our alternatives? From a constitutional amendment to the American Anti-Corruption Act to [doing something] tomorrow? And the answer is there are some things that could be done in the months ahead.”
Potter would start with remaking the FEC—and have new members of Congress tell the White House to fill its five vacancies. Now those seats are held with holdovers—three from each party. President Obama has not put any nominees before the Congress. A revived FEC could also look at the kinds of activities that the Supreme Court said in Citizens United were constitutional and regulate them—such as 2012's super PACs.
Beyond that, the IRS has been ducking making decisions on whether some of 2012’s dark money groups—those pretending to be non-profit corporations—should lose that status and be forced to reveal who is bankrolling them. The Center for Media and Democracy’s Lisa Graves has called on Congress to investigate these groups.
And as Stetson Law School’s Ciara Torres-Spelliscy told the room, the Securities and Exchange Commission has received 300,000 comments supporting a new rule to require corporations to disclose their political spending, but has not acted. Potter said that states could pass laws requiring shareholders to approve budgets for political activities. That passed in Connecticut but was vetoed by its Democratic governor after corporate protests.
“This is a national movement and that’s the sort of thing that can be pushed across the country,” he said. “You might find governors in both parties less inclined to veto it. Those are the sorts of things that can be done in the short term.”
All of these ideas—from the long haul of amending the U.S. Constitution to pushing Congress, Obama, the FEC, SEC and states to act now—reveal a democracy movement that is deepening and growing in ways that could usher in historic political change.
“The level of discussion, the level of debate, the level of really serious discourse about how to solve these problems is really exceptional,” said PFAW’s Baker. “I’ve been to a lot of events on this subject. I have never been to an event that more throroughly, more deeply, more authentically, more honestly engaged the speakers and the participants about these really tough questions that all too often have divided us. But instead, we are united in trying to grapple with these problems. That’s really, really important…
“This is happening because the people want it to happen.”