Thoughts on a Constitutional Amendment to Address Citizens United

I had a mini-Eureka moment yesterday afternoon during a free-flowing seminar I attended about the Citizens United decision.

The problem with corporate entities participating in politics as though they were voters (anonymous voters, to boot!) is so insidious that effective countermeasures are unlikely to come from either the Congress or the courts without constitutional direction.

Amending the Constitution is a big deal, but popular revulsion over the corruption of our national politics could crystallize in the next decade or so, and presumably state legislatures, with the right cover, would pile on if they perceived they were expressing popular local will and disciplining Washington.

The problem with legislative and regulatory approaches is that they can hardly ever escape being partisan. Witness the supposed reform bill that exempted the NRA. Legislative half-measures only foreground how fundamentally Congress has been bought. Another case in point is the Shareholder Protection Act of 2010, which supposedly puts corporate political speech under authority of shareholders, but in reality cannot because it exempts from its provisions lobbying and other political actions. (Better to leave that one alone, I’m coming to concede; shareholders can always divest themselves of holdings in companies that either participate in politics or are not transparent in how they are spending money to do so.)

Put it another way: whatever fix attempted by a political party or coalition in power would not be trusted by the minority. They would assume the details had been gamed, metaphorically gerrymandered. And recent experience suggests that would be likely to be so. Worse yet, all incumbents might conspire to preserve a status quo while dressing up a superficial reform as some grand bipartisan watershed.

The words of a constitutional amendment would have to be chosen carefully. Here’s one example of possibly the softest approach, to interlineate a word in the First Amendment to confirm the sense that speech is an activity of natural (as distinct from legal) persons:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the people's freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

But I don’t know if that works because, although it clarifies a principle by which to be guided, it yet passes the problem back to the legislature and the courts to hash out: Congress would then feel freer to regulate, and the courts would watch over whether the lines were being drawn and implemented in constitutionally permissible ways, but anonymous corporate interests would still be in the middle of that process.

Possibly, the most effective approach would be a separate amendment that would ban, forbid, usurpation of the people’s sovereignty through the sale of votes or the sale of access by elected officials or candidates to office, as well as a ban of all lobbying or other schemes to influence or “inform” the government not endorsed by an actual citizen. Something akin to a “sunshine act.”

This constitutional amendment could even have a sunset provision, so that it would expire after, say, 20 years, unless 2/3 of state legislatures voted to make it permanent. We could look back and see if we missed the attack ads or the corruption or the policy-making doomed to derail from the word go.


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