constitutional amendment

  • December 11, 2012
    Guest Post

    by Dan Mayer, Legal Fellow at Public Citizen’s Democracy Is For People Campaign, which is working towards a constitutional amendment overturning Citizens United v. FEC and limiting the influence of corporations and money in elections.

    Six billion dollars. That’s just the reported amount spent to elect or defeat the entire slate of federal candidates in the 2012 cycle.

    To be sure, some of the biggest players in the super PAC game weren’t very efficient about how they used the unlimited contributions they took from their ultra-wealthy individual and corporate patrons. Court rulings in Florida, Ohio and Pennsylvania put some of the most egregious voter suppression efforts on hold while invigorated civil rights groups worked to turn out every eligible voter they could find. Several prominent candidates suffered “legitimate” humiliation and defeat. And apparently, 47 percent of America wasn’t going to vote for Mitt Romney anyway (or so we hear). 

    Does any of that mean that money doesn’t matter, that the Citizens United vs. Federal Election Commission era is over as quickly as it began? Don’t bet your democracy on it.

    The Obama campaign outspent the Romney campaign, $549 million to $336 million. The national party committees were close in fundraising (a mere $50 million GOP advantage), but Democrats actually outspent Republicans $814 to $776 million. Outside groups, some disclosing their donors, some not, favored conservatives by $855 million to $406 million in “independent” spending. For all that, in the first full-scale conflagration since Citizen United, the great powers basically fought to a draw, barely moving the lines in Congress.

  • September 13, 2012
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law George Washington University Law School. This post is part of an ACSblog Constitution Day Symposium.


    As Constitution Day approaches, there is much that will be and should be said in praise of the document that has successfully guided the United States for more than 220 years.  But when there is some part of our governance system that is broken, it does not denigrate the Constitution to recognize that and to propose to do something about it. That is, after all, why the Framers included Article V that makes it difficult, but not impossible, to correct a flaw in the grand design.

    Over 12 years ago, I signed on to a publication of The Constitution Project entitled "Great and Extraordinary Occasions: Developing Guidelines for Constitutional Change."  The authors argued that constitutional amendments should not be used without a showing of great need for an important part of our system and the absence of any lesser means of solving a problem.  I continue to hold that view, but have now concluded that those stringent criteria have been met and that only a constitutional amendment can fix the problem of uncontrolled spending in elections for public office.  Some would disagree because they believe that elections awash with money from those with strong economic (and sometimes other) interests in the outcome are good for democracy (or for the interests that they support), and hence would oppose such an amendment on its merits.  But for those who decry the current excesses in campaign contributions and expenditures, there is little choice other than to amend the Constitution.

    Much of the discussion about this issue lays the blame solely on the Supreme Court’s decision in Citizens United. But as I have detailed elsewhere, “It’s Not Just Citizens United,” that decision is only one part of a much larger set of problems, going back to 1976 in Buckley v. Valeo, when the Court held that the First Amendment precluded the Government from limiting the amount of money that individuals could spend to support candidates via independent expenditures.  In those days, that may have meant expenditures of at most tens of thousands of dollars, but in 2012 that has ballooned to tens of millions, significant portions of which go through organizations that collect money from multiple sources and whose independence is at least open to question.  Citizens United permitted for-profit corporations from doing what individuals can do on the independent expenditure side – albeit with vastly greater resources than all but a very few individuals – and many observers think that the century old ban on direct contributions by corporations is set for a similar demise.  Finally, in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, the Court has put a serious crimp in the effort to create a public funding system by outlawing the effort to augment basic public funding to counter massive spending by an opponent that chooses not to be part of that system.  Additional disclosure would be good (assuming that Congress can pass it), but alone it cannot be enough to overcome these major rulings.  It is possible that the composition of the Court will change, but it is highly unlikely that all of these decisions will be overturned, which is pretty much what is needed.

  • September 10, 2012

    by Jeremy Leaming

    The effort to amend the Constitution to counter the ever-growing corporate influence on lawmakers and elections is a noble one, but there is a more useful and far-reaching way to correct the matter – make corporations more democratic. That’s law Professor Kent Greenfield’s take in a new article for Democracy.

    It’s an extensive piece that helps explain why the Supreme Court’s 2010 opinion in Citizens United v. FEC is quickly producing a corrosive effect on elections from coast to coast, but also why seeking a constitutional amendment is a wobbly strategy.

    Not long after the high court in Citizens United invalidated some major campaign finance regulation and found that corporations have nearly unfettered rights to funnel their expenditures into elections, an effort was launched to amend the Constitution.

    John Bonifaz and Jeffrey Clements co-founded Free Speech For People a group devoted to a constitution amendment overturning Citizens United.

    A recent debate with Bonifaz helped spur Greenfield to write the Democracy piece. Greenfield, who teaches business and constitutional law at Boston College, says that too many progressives have decided that constitutional law solution is needed to trump the Citizens United. Instead, Greenfield argues that it is corporations and how we understand them that need to change.

    “While the constitutional effort is defensive and palliative, a campaign to redesign the corporation itself would be affirmative and transformative,” Greenfield writes. “To cure Citizens United, we don’t have to amend the Constitution – we need to rethink corporations.”

    The nation’s laws governing corporations are weak and shareholders, despite widespread belief, do not have much to do with running corporations. (He notes for instance that shareholders are “not ‘owners’ in any meaningful way. If you own a share of General Motors, you will still be tossed out of its headquarters as a trespasser if you try to enter without an appointment.”) In Citizens United the Supreme Court majority, Greenfield notes, saw corporations as “associations of citizens,” but in reality America’s corporations are largely representative of the wealthy few, the 1 percent.

  • August 31, 2012

    By Jeremy Leaming

    The effort to trump the Supreme Court’s disastrous corporate elections spending case, Citizens United v. FEC, received a presidential stamp of approval this week, but because of the media’s heightened coverage of a political convention in Florida, it went largely undetected.

    But while politicos gathered in Tampa to do what they inevitably do, provide a boring, predictable show, President Obama in a Reddit conversation said a constitutional amendment might be the only way to go about staunching or at least curbing corporate America’s increasingly disconcerting grip on elections for public office.

    A bit of hyperbole above, because some press did notice Obama’s comments made during the Reddit discussion. As Politico reported, the president said, “Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United (assuming the Supreme Court doesn’t revisit it.). Even if the amendment process falls short, it can shine a spotlight of the super-Pac phenomenon and help apply pressure for change.”

    Politico noted that Citizens United greatly weakened federal regulation of corporate spending on elections, thereby allowing business interests to become even more involved in controlling political outcomes and influencing political parties.

  • September 14, 2011

    by Jeremy Leaming

    Tired rhetoric about the alleged dangers of state recognition of same-sex marriage was, perhaps not surprisingly, heavily bandied about during the North Carolina General Assembly’s debate to place a constitutional amendment before voters next year to make doubly certain that the state cannot recognize same-sex marriage (the state already has a law on the books banning gay couples from wedding).

    State House Republican Leader Paul Stam in pushing the bill said if lesbians and gay men were allowed to wed, it would unquestionably diminish marriage as a whole, in part, by dissuading some straight couples from entering into marriages. The debate was also infused with religiosity, as it has been in similar debates nationwide. Supporters of the proposed amendment took to the state capitol grounds to hoist signs reading, “Man + Woman = Marriage God’s Way,” and The Rev. Patrick Wooden of the Upper Room Church of God, as The New York Times reports, tarred gays as leading a “deathstyle.”

    This hysterical rhetoric apparently played well in the N.C. legislature which quickly, with no public comment, approved the measure for a spring 2012 ballot.

    The measure, if supported by voters, would likely be one of the nation’s most onerous bans against gay unions, as The Huffington Post notes, it would prohibit “legal recognition of any union besides marriage between one man and one woman, including civil unions and domestic partnerships for gay and straight couples.”

    University of North Carolina law school professor Holning Lau in a Sept. 12 report debunks much of the argument peddled by opponents of marriage equality. Lau notes in the opening of his paper that Rep. Stam offered no evidence to support his claim that state recognition of gay marriages would “diminish people’s interest in marriage and, as a result, heterosexuals would become less likely to enter and stay in marriages.”

    Lau writes, “Marriage rates in states with amendments suggest that the amendments did not change people’s views of marriage in ways that slowed the decline of marriage rates in those states. Meanwhile, the fact that marriage rates did not drop off in states that recognize same-sex unions suggests that the state recognition of same-sex couples did not deter people from getting married.”

    He concludes:

    There is no support for claims that marriage amendments increase marriage rates or decrease divorce rates. Further, there is no evidence that legal recognition of same-sex couples devalues marriage, thereby deterring people from marrying or encouraging divorce. These results cast substantial doubt on arguments that North Carolina must protect marriage by passing a constitutional amendment. As the debate in North Carolina continues, individuals engaged in deliberation should be skeptical of marriage protection claims.

    Lau’s entire report, “Do Marriage Amendments Really Protect Marriage? An Analysis of Data from 2000 – 2009,” is available here.