Why It's Delusional to Think a Campaign for a Constitutional Amendment Can End Citizens United
The three-plus-year push for a constitutional amendment on money and politics, leading to a bill sponsored by Senator Tom Udall, D-New Mexico, ended with a predictable thud in the Senate Thursday morning when 54 senators, including all Democrats, voted for it, and all 42 Republicans voted against it. Since two-thirds of the Senate is necessary to pass an amendment, and no Republicans indicated any interest, it never had a chance.
The push for the 28th Amendment was a desperate reaction to the latest series of U.S. Supreme Court decisions that have unleashed an unprecedented flood of secret money into American elections. As Steven Rosenfeld reported, super-donors have more power and influence than ever, thanks to many court decisions leading up to Citizens United. In response, a huge campaign by dozens of liberal advocacy groups and a relentless Democratic Congressional Campaign Committee (DCCC) garnered more than 1.5 million online signatures to line up votes for a 28th Amendment in the hope it would pass a first hurdle in a long, virtually impossible path. In other words, given today’s hyper-partisan political landscape, the biggest effort to engage federal lawmakers on the topic of rescuing American democracy was fated to fail.
On Monday, it was first thought Senate Republicans would prevent debate, which would have killed the amendment on the spot, since five Republican votes were needed to begin debate and break a filibuster. But then some members of the GOP saw utility in allowing the debate to advance to score some points. The vote to open debate was 79-18 and immediately seized by groups like MoveOn.org and DCCC, and hyped as a harbinger of big progress, but that was far from true. When Laurence O’Donnell shared his delight on his MSNBC show that night, Minnesota Democratic Sen. Al Franken, had to break the spell and tell him sorry, but this is all a maneuver by those sneaky Republicans to run down the clock to prevent any progress on issues like minimum wage before a recess.
So by Thursday, the charade ended. The sporadic debate interrupted by lack of quorum, and by more compelling issues like the militarization of the police and the ISIL foreign crisis crawled to a halt and the amendment fell 13 votes short. The predictable failure of this effort—along with the fact that constitutional amendments on campaign finance have been debated four times in the Senate dating back to 1987 and all have failed (even though in the past they attracted some Republican votes)—suggests it's time to step back and ask some hard questions.
Is the amendment route the smartest approach? Is it the only pathway to political reform? Has it helped build a progressive movement? Or was it bumper-sticker politics, and primarily Internet clicktivism, that deluded many reformers and didn’t threaten America’s wealthy political insiders in any serious way?
The Push For the Amendment
The U.S. Supreme Court’s rulings on campaign finance, usually referred to in shorthand as overturning Citizens United, really freaked many people out. As predicted, the Supreme Court's (SCOTUS) rulings have led the political culture to run further amok with super-rich donors dominating the process as never before. Even though there has been a long history of SCOTUS voting to treat money as speech, the Roberts Court’s decisions seemed over the top—especially by narrowing the definitions of political corruption. They reinforced the sense that American democracy belongs to the few, leaving many citizens feeling alienated from the political process and concluding there’s not much anyone can do. And that big question remains: what can people do?
A national push for a constitutional amendment was what some people thought should happen. On Monday, a bill from Sen. Udall made it to the floor that would restore the authority of Congress, individual states and the American people to regulate campaign finance, the New Mexico Democrat's website explained. And it would clarify in the Constitution that money does not equal speech, effectively reversing Supreme Court decisions dating back to the 1970s that have increased the power and influence of wealthy donors.
The past three-plus years have seen a large-scale, multi-organization advocacy campaign to back the constitutional amendment—including different versions. Some want to empower Congress to newly regulate campaigns. Some declare that corporations don’t have the same rights as people under the Constitution. Some want to do both. One leading group called Move to Amend, blending both demands, has gained non-binding resolutions in dozens of state legislatures and scores of local government bodies—city halls, town councils, ballot initiatives.
As the effort grabbed the attention of Senate Democrats, a gaggle of groups including DCCC, Daily Kos, Move On, Public Citizen and others, collected more than 1.5 million Internet click signatures and raised unknown amounts of money to push for it. But now all that effort has hit a dead end, and it seems so obvious that it would.
As Politico noted, “The prospects for actually amending the Constitution in Democrats’ preferred manner are nil, given broad GOP opposition.” Democrats needed 67 votes for final passage, as is required for a constitutional amendment. Prior campaign finance reformers like Sen. John McCain, R-AZ, opposed it as written, not to mention there’s zero appetite in the House for any amendment.
The problem of money and politics is hardly new. The current legal landscape of feeble federal regulations and newly minted loopholes has been around since the mid-1970s; it is just more unacceptable and extreme today. In recent decades, philanthropists have spent hundreds of millions of dollars trying to reform the federal system, yet the situation has gotten worse, year after year.
Why Even Try a Campaign for a Constitutional Amendment?
Since sunshine is a hallmark of campaign finance reformers, it is important to take a close look at how the reformers are going about trying to fix the political money system. Many people electronically signing their names and donating money to this effort do not understand how high the hurdles are for passing a constitutional amendment. Not only does it take a two-thirds vote of both houses of Congress, but also three-fourths of the states must pass it for it to become law. This is probably the hardest thing to do in our system. The campaign for the Equal Rights Amendment was first introduced in Congress in 1923. Congress finally sent a version to the states in 1972 and it still hasn’t passed, 42 years later. Try to imagine this divided Congress voting in a two-thirds majority for anything that is seen as partisan. More far-fetched is the notion that three-fourths of the states would adopt it. That would require a lot of red states to agree to rebuke this conservative Supreme Court.
So, if it is pretty much impossible to achieve a 28th constitutional amendment, why is this campaign continuing? There are at least two reasons. First, there seems to be an assumption among liberal activists that one must pursue the impossible to educate the public about key issues, readying them for some kind of future when things will be different, whenever that might be—perhaps to keep the activists, and the paid staff in the advocacy groups, busy and feeling relevant.
A second reason in the later phase of the campaign is collecting all those e-mail addresses and names. In this stage of the Internet’s evolution, the liberal and progressive fundraising model has shifted to one of rapid petition pushing, along with seeking donations. Accumulating new e-mail addresses is the coin of the realm in progressive-land as private companies like Care 2 and Change.org have upward of 15 million names, and sell access to them. Meanwhile, Democratic Party fundraisers are very aggressive, often sending several or more e-mails a day. Many other groups have adopted the petition model in part to stay competitive. But has this competitive situation produced questionable tactics and misinformation in the efforts to be successful?
Are Petition Signers Being Deceived?
So yes, one would assume that the more people who know about the issues involving the amendment, and the problems of money and politics, the better. It makes logical sense that the more you try to educate people the more supportive they should be. However, this is all theoretical, and there is a potential powerful downside in the current situation. Many of the groups organizing the campaign have been pushing messages that promise far more than they can deliver. In fact, many communiques have not been clear or truthful, and border on propaganda. Are these campaigns deluding progressives into thinking that by signing a petition an amendment might happen, when it can’t?
What might the downside be, when people realize how far-fetched the amendment’s passage actually is, as it fades away as a viable idea? How will these 1.5 million supporters feel about the campaign and the future of the issue?
The language being used to pitch the amendment campaign in e-mail appeals is mostly signed by good people who care about important issues. But the messages in the letters are dubious, to say the least. In July, our good friend Miles Rapoport—the new president of Common Cause—used this language: “With your 2014 Annual Fund contribution, Common Cause will work to restore common sense spending limits in politics by passing a constitutional amendment to reverse Citizens United.”
ProgressiveCongress.org sent an e-mail, “Have you heard the great news… the full Senate will vote on the Democracy for All constitutional amendment. If it passes, this constitutional amendment will end the Citizens United era.”
It sounded like the Senate vote would solve the whole problem, which isn’t remotely true. This language is deceptive.
Full disclosure: Last week, AlterNet sent a letter to our list of readers on behalf of Public Citizen. The communique from its usually savvy president, Robert Weismann, essentially used the same misleading language:
“Public Citizen has been standing up to runaway corporate power for 43 years and counting. These last four, since the Citizens United ruling was handed down, have been among our most challenging. But we are winning the fight for a constitutional amendment to overturn Supreme Court disasters like Citizens United. And we want YOU to be part of this historic movement.”
Moveon.org was one of the few places I saw appeal-letter rhetoric that at least suggested a constitutional amendment is difficult to pull off. Vermont independent senator Bernie Sanders signed the appeal. But the fact that winning an amendment is extremely hard posed no problem for the loquacious Bernie, who conjured up fantasies comparing the Udall Amendment to women getting the vote in the 1920s and historic civil rights achievements:
“I can’t help but reflect on past constitutional amendment victories that changed our nation—like the ones propelled by people just like us to give women the right to vote or advance civil rights. We have big lessons to learn from each of these breathtaking victories and others like them.”
“The journey to a successful amendment passage—two-thirds majorities in both houses of Congress—was long and arduous. Millions and millions of Americans joined together in common cause. Every single person was necessary. And because of the grit and faith of our courageous predecessors, our nation emerged from these struggles a little wiser and a whole lot more just.”
Still, Move On added,
“We’re in a sprint to the finish line. Our work is paying off. Together with our allies, we have secured 50 senators who are on the record as supporting S.J. Res. 19. But there's still much more to do before and after the vote on September 8. And, quite frankly, we need $200,000 to get it all done.”
Needless to say, before asking for $200,000, MOveOn knew full well there was zero chance of this passing. And the problem with Sanders waxing poetically about the past is that his historical analogies don't fit the reality of campaign finance as an issue. Perhaps the most important ingredient to social change is “skin in the game,” a direct reason for people in any struggle to be fighting. This was certainly true for women who protested hard to win the right to vote, as it was for civil rights activists fighting racist segregation. But the analogy is quite a stretch in the money and politics field.
Where Is the Skin in the Game?
Campaign finance is not an issue most people feel that they have skin in the game in an intensely personal way. Campaign finance is an abstract, complex, process-heavy issue. The vaunted campaign finance reformer Phil Stern called it a MEGO issue, meaning “my eyes glaze over.” It is quintessential inside-ball. The passionate Stern wrote the then-famous book, The Best Congress Money Can Buy, back in 1988, in one of the earlier phases of campaign finance reform. That book was a major influence on this writer and led to my intense engagement in the issue for some years. I finally concluded, as the problems got worse, that reforming the money system that everyone in power benefitted from, would be pretty much impossible, and other approaches were necessary.
So yes, it is true that many voters think there is far too much money overwhelming the political system. Yet it doesn't find its way on to their issue priority list. Many people reasonably think that everyone they can vote for, for federal office, takes lots of money. They see Democrats like President Obama, and many senators, rejecting spending limits and outspending their Republican opponents. Why would they vote to dismantle the system they mastered to get elected? Let’s not forget it was Obama who rejected presidential public funds in 2008—the first presidential nominee to do so.
So what is the entirely unrealistic amendment strategy accomplishing besides getting more names? It can be argued that it is intentionally deluding many liberals into thinking that by signing a petition an amendment might happen, when it can’t. The political right is not threatened by this campaign, and probably thinks it’s great: let all those progressives put all this energy and money into a quixotic pursuit.
Yet in an op-ed on September 7 on Politico, Sanders and Udall said, “We must develop an unprecedented grassroots movement in all 50 states to make it clear to Congress and the Supreme Court that buying of elections is not what American democracy is all about.”
But we just had three years of grassroots activity on this issue, and the results are clear.
What About Larry Lessig?
Another problem for the amendment reform strategy is that the most visible and best funded of the campaign finance reformers, Larry Lessig, has abandoned the reform pathway and gone all in on a huge fundraising effort, essentially to win on the turf granted by the Supreme Court’s rulings—which is where the Koch brothers are.
Lessig’s “super PAC to end all super PACs,” is raising lots of dough—$12 million so far this year from more than 50,000 donors, including a handful of very wealthy ones—ironically to try to get money out of politics by spending large amounts of money. Over the last couple of years, Lessig had hoped to push state legislatures to pass resolutions calling for a federal constitutional convention, as a way to provoke Congress into passing strong democracy reforms. That’s more or less how the direct election by voters of U.S. senators came to pass a century ago, he said. But that wasn’t going anywhere, he realized, just as he knows that the constitutional amendment strategy is a political pipedream.
Some of Lessig’s progressive money is going directly into the campaign coffers of marginal conservatives and libertarians running in elections this fall. That move, the ramifications of focusing obsessively on single-issue campaigns in the face of such daunting social problems, has certainly raised some eyebrows. And Lessig, while clearly operating outside of the box in a provocative way, may be destroying the village to save the village—to use a Vietnam War era analogy. If progessive reformers end up using the lite version of the same democracy-destroying toolkit employed by the Koch brothers and their network of rich libertarian businessmen, does that establish moral clarity and higher ground for a distracted public to see?
It’s Really About Who Sits on the Supreme Court
The political reality is that the only thing in the foreseeable future that could have a large-scale impact on the influence of private money on national politics is a change in the makeup of the Supreme Court—a new justice, who would give “liberals” a voting majority. This is reality politics.
But changing the Supreme Court’s members is a complicated and dicey proposition. In the near term, it depends on which justice leaves first in the next two years, if any. The oldest justice is Ruth Bader Ginsburg, who is 81 and has had serious health problems, but insists she is not retiring. On the conservative side, Antonin Scalia and Anthony Kennedy are both 78, while Stephen Breyer, on the liberal side, is 76. Should a justice depart, then who can be nominated and confirmed depends in part on which party controls the U.S. Senate. At this point, various polls and prognostications suggest the Republicans could gain control in November, or it will be very close.
But more important is the fact that the elimination of the 60-vote super-majority to end filibusters, orchestrated by Majority Leader Harry Reid, mainly applies to presidential appointments, but not Supreme Court nominations. This means that anyone nominated by Obama—if there is a vacancy in the last two years of his term—needs to attract at least 60 votes, which will mean anywhere from seven to 10 or more Republicans will need to support the nominee. And where that nominee might stand on the question of regulating political donations and electoral speech is impossible to know. Then, if there are no changes on the Court during the next two years, the person elected president in 2016 will face this same question—including confirmation by the Senate.
But back to the amendment movement and Thursday’s Senate action. In the end, in terms of the goals of real change, do these progressive reform groups backing the amendment have more savvy supporters? More informed voters? Or are more people going to be alienated because they trusted these reformers, became engaged, and not surprisingly expected results? How much of this is arrogance by the organizers? How much of a wink and a nod is acceptable here?
Many organizers feel it is no big deal that they are pushing the impossible, or that they are encouraging magical thinking by suggesting a bolt of political lightning could completely revive American democracy. Many of the same people pushing for a constitutional amendment on campaign finances also want to pass an amendment to declare that corporations are not people. It’s a great bumper-sticker line, but you can't erase more than a century of law the way you can wipe a blackboard clean.
What Is There To Do?
It's a fair question to ask. There is no escaping that reforming the political money system, because so many powerful people benefit from it, will continue to be extremely difficult. But it is important to resist imagining solutions that do not address the current problem. Here are six points along the lines of alternative approaches.
1. Stop deluding people into thinking that a constitutional amendment is even remotely possible in any currently imaginable series of events over the next decade and more. The hard news is that the system has essentially locked people out. We are not really practicing democracy in the U.S. The sooner millions of people grasp how dire it is, in a meaningful day-to-day experience, the sooner more people will be radicalized to how corrupt the existing system is. There will be no pendulum swinging back any time soon. Organizers need to get beyond "reform" and make a more systemic analysis that includes climate, militarism, inequality, corporate corruption, etc. Pretending that clicks on a web petition will have any impact on this issue is simply deceptive. And suggesting that campaign finance has to be changed, before other important things can be changed, is arrogant.
2. Get significant commitments, not superficial clicks. What commitment did the people who signed the petitions make? Probably none, although some gave money. The time has come to ask supporters what they would be willing to do for this issue. One example: Give money within 24 hours to an organizing campaign that could make a difference (e.g. it is very important to protect much better campaign finance laws at the local level). For those who are partisan, give money to support a candidate who is being particularly brave on this issue. Another example: Show up with other committed supporters to a demonstration, in rapid fashion. These kind of steps should be done using the "penguin principle"—people making pledges together so that there would be no demonstration until 5,000 people all agree to do it. (The metaphor is that all the penguins are lined up on the edge of the ice flow, and none jump off until all of them jump together.)
3. Along the lines of #2, there will likely have to be some mass demonstrations to show that people really care about this issue, or else it will always be secondary. In two weeks, hundreds of thousands will march in New York City to try to reverse the effects of the climate crisis. Climate change is also an uphill battle, but there seems to be some skin in the game for people who worry about their children and grandchildren. Hundreds of people have been arrested on this issue. What about getting arrested for fighting dark money?
4. Focus on targets that are actually achievable. Specifically, President Obama has in his power to make an executive order to require all corporations receiving federal money to make their campaign contributions transparent. Currently the law, based on SCOTUS rulings, allows anonymous campaign donations to super PACs. The Chamber of Commerce obviously does not like this idea of transparency, which may be why Obama has been timid. The Security and Exchange Commission has also been sitting on issuing similar disclosure requirements. These are not panaceas, but they enable advocates to put pressure on public corporations, who value their brands.
5. Start thinking about organizing strategies that make use of grassroots organizers. For one, pressure Lessig to instead of giving millions of dollars to bad and hopeless candidates, pay for real canvassing efforts by young people, in swing states with a real history of engaged politics—i.e. Iowa and New Hampshire.
6. Fundamentally understand that this issue on the national level will only be changed by a positive shift in the makeup of the Supreme Court. Which means who gets elected to the Senate in 2014 and 2016 is hugely crucial. And yes, this is partisan politics, but many of the groups weighing in on this issue are for-profit business with PACs that can and do engage in elections. There is no escaping that the fewer Democrats there are in the Senate, the less chance there is to get a new Supreme Court justice who will vote with the existing minority on this issue.