Reform the Right Way: Efforts to Overturn Citizens United
Campaign finance laws are crucial for eliminating corruption and ensuring equality in American elections. However, the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, which for the first time in nearly a century legalized corporate spending in elections, and subsequent related decisions allow wealthy individuals and special interests to have disproportionate influence over elections. Since the decision was handed down, Common Cause has been at the forefront of efforts to repeal Citizens United, arguing that corporations should not be afforded the same rights as individuals and that the government should be able to place reasonable limitations on political spending. Democracy should not be distorted by corporate spending that drowns out the voices of individual citizens.
The Citizens United decision must, however, be challenged in a responsible manner. There are two ways to pass a constitutional amendment, as described in Article V of the Constitution: a two-thirds vote in both the Senate and the House of Representatives, or a two-thirds vote at a national convention called for by the states. Though 27 amendments have been ratified through the first method, a constitutional convention has never been called before, meaning that there is no historical or legal precedent to govern how it would operate. The U.S. Constitution contains no language limiting the scope of a constitutional convention, so a “runaway convention,” in which amendments dealing with any issue—including marriage equality, civil rights, voting rights, abortion, or a mandate for a balanced federal budget—could be proposed and passed, is a real and frightening possibility. Movements on the political fringes have long advocated for an Article V convention, and many prominent legal scholars have warned that there is no way to stop them from significantly altering the Constitution. An Article V convention could therefore threaten to fundamentally undermine American democracy and civil liberties.
Additionally, there exist many logistical concerns about holding a constitutional convention, as it is unclear how delegates would be selected, what rules would govern their debate, how the involvement of special interest groups would be limited, and how the American people would be accurately represented. With little historical guidance and potentially disastrous consequences, an Article V convention is a far too dangerous way to make changes to our democracy.
Earlier this month, a bill (S. 2243) condemning Citizens United and calling for a constitutional convention came before the Massachusetts Senate. The bill was eventually passed, but only with an amendment which removed the support for an Article V convention. The bill now simply calls on Congress to pass a constitutional amendment establishing that money spent in elections is not protected as speech under the First Amendment and that corporations are not entitled to the same rights as individuals. Without the call for the Article V convention, this bill is a small step in the right direction for campaign finance reform.
A local effort offers another way to move towards repealing Citizens United. American Promise, supported by many allies including Common Cause, is driving a ballot initiative to create a citizens commission that will “consider and recommend potential amendments to the United States Constitution to establish that corporations do not have the same Constitutional rights as human beings and that campaign contributions and expenditures may be regulated.” The question will appear in November on ballots across Massachusetts. The commission, which any Massachusetts resident who is a U.S. citizen could apply to join, would conduct research and hear testimony before issuing a report by the end of 2019. The report would assess the impact of political spending in Massachusetts and announce suggestions on passing a constitutional amendment to address campaign finance reform. This ballot initiative offers an excellent way to continue discussing Citizens United and reiterate the support of Massachusetts residents for a challenge to the Supreme Court decision.
We can fight against unfair campaign finance practices without venturing into dangerous, uncharted legal territory with a constitutional convention. Through continued persistence—like this ballot initiative—we are moving closer to repealing the Citizens United decision and ensuring that government is truly of and for the people, not the donors.