The single biggest hurdle facing the Democratic Party is a Supreme Court that believes that corporations are people and money is speech. We should learn the lessons from the success of the Filibuster Reform Movement to lay the groundwork now to build a coalition and start re-framing the conversation so that we can overturn this ruling.
As recently as four years ago, suggestions of Filibuster Reform were laughed off by many Democratic leaders as “never going to happen.” Over a sustained campaign the Filibuster Reform Movement focused the whole Democratic coalition on how the filibuster impeded each coalition member’s policy goals. By uniting this broad coalition, major steps forward have been taken. Though more reforms of the filibuster will be needed, the first and biggest hurdle of accepting the need for Filibuster Reform has been achieved.
The two oldest Supreme Court Justices supporting the position that corporations are people and that money is speech (Scalia and Kennedy) are 77 years old and unlikely to retire in the next decade. A constitutional amendment would require two-thirds of each house of Congress, or two-thirds of the state legislatures calling for a convention, to propose an amendment and three-quarters of the states to ratify it. This is an extremely high bar, all the more so because of the money likely to be spent to block it. A much lower bar is part of the checks and balances structure in the Constitution.
The Constitution does not set the number of justices on the Supreme Court. The Constitution grants the power to Congress to establish the size of the Supreme Court, and Congress has over time changed that number. The Judiciary Act of 1789 created a six-member Supreme Court. In 1807 a seventh justice was added. In 1837 Congress increased the Supreme Court to nine justices. In 1863 a tenth justice was added, then in 1866 Congress passed legislation that would reduce the Supreme Court back to seven as sitting justices retired.
The current size of the Supreme Court was established in 1869. The lower courts have been changed repeatedly both before and since 1869. Congress could by simple majority pass Judiciary Reform that improves the justice system and expands the Supreme Court.
Challenges: President Franklin Delano Roosevelt tried to get Congress to pass the Judiciary Reorganization Bill of 1937, which included a provision that would have allowed him to nominate a new justice for every sitting Supreme Court justice over the age of 70. This would have allowed FDR to appoint six new justices. Americans take great pride in our checks and balances system, and view Congress’s rejection of FDR’s proposal as a great victory of the checks and balances system over a Presidential overreach. We must increase the historical understanding and the framing of this discussion to show that adding two new justices is Congress’s power within our checks and balances system to check an extremist Supreme Court that has overreached.
Short Term Steps: Like Filibuster Reform four years ago, there is no political will to pass Judiciary Reform today. In the short term there are steps, similar to the steps taken by Filibuster Reform advocates, which we can take now to start building the coalition and preparing the political terrain that will allow us to pass it. These steps are:
1) Engage Democratic members of the House and Senate Judiciary Committees and their staffs. The first step will be to engage Democratic Members of the House and Senators and their staffs and get their ideas on addressing the problem the Supreme Court’s ruling has caused.
2) CRS Report on the History of Judiciary Organization. Based on the feedback we receive from Members of the Judiciary Committees and their staff, work with Judiciary Committee Members to request a CRS Report on the history of Congress’s past actions changing the size of the Supreme Court.
3) Engage Outside Historians and Legal Scholars. Work with organizations such as the American Constitution Society and People for the American Way to encourage historians and legal scholars to write about the history of judiciary organization, including Congress’s role in changing the size of the Supreme Court.
4) Expand the Team. Meet with unions, The Other 98%, campaign finance reform advocates, pro-choice organizations, immigration reform organizations, civil rights organizations, LGBT organizations, environmental organizations, and other members of the progressive coalition to get their ideas on addressing the problem. Educate them on the CRS report and scholarly histories as these are published. Over time, get more allies to spread awareness that this is a problem the whole progressive movement must work together to solve.
5) Public Outreach and Education. As the CRS report and other histories are published, spread awareness of them through blog posts, tweets, Facebook shares, letters to the editor, and panel discussions hosted by allied groups and at Netroots Nation.
These steps will prepare the ground now for obtaining the majorities needed to enact reform.
This is a cause that affects the entire progressive community. With the proper framing and groundwork, like Filibuster Reform, a major change that reshapes the institutional landscape can become the cause of the entire community and be enacted.