The Realistic Solution to Citizens United

Representative Donna Edwards of Maryland, joined by ranking Judiciary Committee member Rep. John Conyers, Jr. and fifteen co-sponsors, has introduced a Constitutional Amendment resolution that would overturn Citizens United v. FEC. This 28th Amendment would allow the American people once again to enact laws to control corporate spending in elections and to have a shot at a functioning democracy of equal citizens.

You may ask, “what’s new?” After all, Congresswoman Edwards led with the Constitutional Amendment response to Citizens United soon after the case was decided in January 2010.

Here’s what’s new: It is now clear that the case for a Constitutional amendment is the realistic, the increasingly mainstream, response to the fiasco that is Citizens United and the fabrication of Constitutional rights for corporate entities.

For many months, the vast majority of Americans, regardless of political party, have supported a Constitutional amendment to reverse the Supreme Court’s creation of corporate “rights.” More than a million people have signed petitions demanding the 28th Amendment.  Free Speech for People and its allies are working together to organize and move resolutions forward across the country.

Now, even Amendment skeptics are capitulating, as our democracy and republican government of the people race faster off the cliff.

The new Edwards resolution reflects this change. As before, we at Free Speech for People helped. This time, however, we were joined by the most distinguished and careful of Constitutional scholars, Harvard Law Professor Laurence Tribe.

Tribe has joined a growing number of leading law professors and lawyers who say a Constitutional amendment is necessary,  and who are helping Free Speech for People to advance the Constitutional Amendment resolution.  And even the most “moderate” of Senators, such as Montana’s Max Baucus, are moving forward with Constitutional amendment resolutions.

This is a sea change. Soon after the nihilistic majority in Citizens United  blew up the two-century old American consensus that corporations were useful in the economic sphere but posed grave dangers in the political sphere, many believed that a Constitutional amendment was “extreme” or “impractical” or “unrealistic.” We would have disclosure. We would have shareholder approval. We could still keep foreign money out of our elections.  Congress did nothing. We have none of those safeguards.

Professor Tribe did not support a Constitutional amendment a year ago. He believed that legislative avenues of reform were available. To be clear, Tribe was far from cavalier about the consequences of Citizens United. Indeed, in testimony to Congress, he warned of the grave danger of a “New Politico-Corporate Order.” Still, he urged that Congress work on “meaningful avenues of legislative relief short of a Constitutional amendment.”

It turns out that it already was too late. A government responsive to the American people was already dying.

The Senate— publicly and without shame —voted down even the limited Disclose Act. This defeated bill would have taken a modest step toward requiring some disclosure of the source of corporate money in elections. In killing disclosure, Congress showed that even the most extreme anti-human and pro-corporate positions that everyone had assumed no politician could possibly support – – secret corporate money in elections, for example – – now were perfectly logical positions for a politician. Why not, when corporate front groups such as the U.S. Chamber of Commerce and Karl Rove’s “American Crossroads” had hundreds of millions to put to use on behalf of (or more intimidating, against) politicians when it came time to face the voters?

So no matter whether someone comes to the Constitutional Amendment fight early or late, scholars such as Professor Tribe and leaders such as Donna Edwards, Max Baucus and many others , deserve not only credit for their clear-eyed realism – – they deserve your support and help (Including, I might add, Free Speech for People).

OK, you might say, even if we agree that we need the 28th Constitutional Amendment, that doesn’t address the “unrealistic” problem.

That’s true only if one believes that we Americans are a lot more timid, worse as a people, than before; weaker than those who won the 27 Amendments that made our democracy of equal people; weaker than those who passed and ratified Constitutional amendments in every decade in the 20th Century after 1913, with the exception of the 1940s and the 1980s.

To the charge of “unrealistic,” more and more Americans are saying “speak for yourself; I’m working for the People’s Rights Amendment.”

I suppose we’ll always have skeptics but with each passing month, it is becoming clear that the only “unrealistic” and naïve view is that our American republic will get along without a 28th Amendment to check control of our government by the largest and most international corporations in history.

About Jeff Clements

Jeff Clements is co-founder and chair of the board of Free Speech for People, a national non-partisan campaign to overturn Citizens United v. FEC, challenge excessive corporate power, and strengthen American democracy and republican self-government. He co-founded Free Speech For People in 2010, after representing several public interest organizations with a Supreme Court amicus brief in the Citizens United case. Jeff has served as Assistant Attorney General and Chief of the Public Protection Bureau in the Massachusetts Attorney General’s Office. As Bureau Chief, he led more than 100 staff in the enforcement of environmental, healthcare, financial services, civil rights, antitrust and consumer protection laws. In private practice, Jeff has been a partner at Mintz Levin in Boston, and in his own firm. Jeff also has served in leadership capacities on numerous boards, including that of the Portland Water District, a public agency responsible for protecting and delivering safe drinking water and ensuring proper treatment of wastewater for 160,000 people; Friends of Casco Bay, an environmental organization he co-founded with others to protect and enhance stewardship of Maine’s Casco Bay; and The Waldorf School in Lexington, Massachusetts. In 2012, Jeff co-founded Whaleback Partners LLC, which provides cost-effective capital to farmers and businesses engaged in local, sustainable agriculture. Jeff graduated with distinction in History and Government from Colby College in 1984, and magna cum laude from the Cornell Law School in 1988. He lives in Concord, Massachusetts with his wife and three children. Jeff Clements Twitter: @ClementsJeff Email: jclements@freespeechforpeople.org
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