I really had trouble believing my eyes when I read Sen. Al Franken's comments about Democratic SuperPACs to Amanda Terkel of the Huffington Post:
MINNEAPOLIS -- Former Sen. Russ Feingold (D-Wis.) seems to have few Democratic allies in Congress interested in rejecting corporate dollars and undisclosed donations from outside political groups in the 2012 elections.
Such a move would be nothing short of "unilateral disarmament," Sen. Al Franken (D-Minn.) said Saturday. "It's sad what this has come to," Franken in an interview with The Huffington Post. "The Citizens United decision was, in my mind, a terrible decision. But... it's final."
Democratic National Committee Chairwoman Debbie Wasserman Schultz also used the phrase in response to Feingold's comments, making clear that some party members in office don't think they can compete with Republicans without such funds to create a level electoral playing field.
Unfortunately, if Citizens United is indeed final, if unlimited corporate expenditures are to be the norm in elections from now on, then we--not just Democrats, but any voters without millions of dollars at our disposal--are essentially screwed. Our entire campaign system is not only going to be money-driven (as it has been for decades), but also so expensive as to price out all but the most wealthy. Candidates in every district will have to hew to the positions set out by corporate elites or risk sudden infusions of millions of anonymous dollars against them.
But even more fundamental than that, the idea that this state of affairs is "final" shows a lack of historical context for the final recourse we have: the amendment process.
Now is when the eyes usually start to roll. But bear with me: the idea that we have to accept the Supreme Court's verdict as the way things must be now and forever is wrong, so long as we can still amend the Constitution.
It's easy to ignore this path as a viable option. The last big amendment push was, after all, the GOP's attempt to enshrine marriage discrimination in the law back in 2006, and it failed miserably. But the two situations are only comparable on the most superficial level: when the anti-gay marriage amendment failed, over half of the Senate voted against it, and only 42 percent of the public expressed support for it. By contrast, polls have shown anywhere from 75-80% public support for an amendment to overturn Citizens United, cutting across party and socioeconomic lines. The national consensus supports an amendment to fix the mistake made by a bare majority of the Supreme Court.
The Constitution is replete with amendments to change the way we elect our leaders: the 12th, 14th, 15th, 17th, 19th, 23rd, 24th, and 26th Amendments all affect our rights in the voting booth. And getting them ratified once proposed by Congress has been an easier task than one might think. On March 21, 1971, Congress proposed the 26th Amendment, extending full voting rights to persons aged 18-20. By the Fourth of July of that same year, the states had ratified it and it became part of our Constitution. The process from Congressional proposal to adoption took 107 days, the shortest the amendment process has ever been. In 1962, Congress proposed the 24th Amendment, eliminating poll taxes in federal elections. That amendment--also concerned with a fundamental change in elections law--took a little longer to ratify, but was enshrined in the Constitution after 514 days. It took 285 days to ratify the 23rd Amendment, giving DC residents the right to vote for President. The 19th Amendment, which granted women full voting rights, took 441 days from proposal to ratification. It was 330 days from proposal to ratification for the 17th Amendment (direct election of Senators).
Calculating the average number of days it took to ratify proposed amendments concerning voting rights in the 20th Century gives us a mean of around 335 days from proposal to adoption.
There are currently 504 days until Election Day 2012.
The hardest part of enacting a CU-reversing amendment will be getting the Congress to climb aboard, given that incumbents stand to benefit the most from Citizens United. But given the overwhelming public support for an amendment, many incumbents will want to support it just to avoid giving potential challengers a free hit.
So what would such an amendment say? Thankfully, Rep. Donna Edwards (D-Aren'tYouGladTheNetrootsBackedHer) drafted and introduced one within days of the original ruling:
Section 1. The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity.
Section 2. Nothing contained in this Article shall be construed to abridge the freedom of the press.
Notice that the amendment doesn't create any fixed regulatory scheme: it still allows Congress and the state legislatures the flexibility to craft rules to fit the times, and still provides the states the opportunity to experiment with various regulatory systems. If incumbents want to continue to rake in massive amounts from corporate donors, they still can. All they're losing is the ability to blame the Supreme Court for their own avarice.
And while from a Democratic perspective this is a potential wedge issue for the GOP base and elites, it's also a two-edged sword, in that it divides most of the Democratic grassroots from Party leaders like Rep. Wasserman Schultz and Sen. Franken. There are two ways to approach a scenario where we adopt a position that differs from the Democratic (as well as Republican) establishment's default. On the one hand, we could view it as yet another sad situation where we have to oppose a number of Democrats on a policy matter. But, on the other hand, we could choose to approach it as a chance to push back against a part of the party that doesn't seem to care enough about protecting civic equality. We've done this before, on net neutrality (an issue not nearly as well known or understood as corporate campaign involvement), and it made the party stronger while strengthening the voice of the grassroots.
A problem exists. We have a solution and the means to implement it. I can promise that it will be difficult. I can't promise we will succeed. But--and I say this in all earnestness--the nature of our republic depends on how we address Citizens United in the next few years. We can fight to protect our rights as voters, or we can accept what happens when artificial "persons" become more important to our political system than real ones.
This fight isn't between the Democrats and Republicans, or the progressives versus the conservatives. It's heartbeats versus balance sheets.
Which side will you take?
12:13 PM PT: What Feingold said that's so right was this:
"I think it's a mistake for us to take the argument that they like to make: 'That what we're going to do now is, we're going to take corporate money like the Republicans do, then after we win, we'll change it.' When's the last time anyone did that? Most people don't change the rules after they win."Just to be clear, I'm not ripping on Franken for wanting to exploit the failings in the system. My point is that, if you're going to say that the decision is terrible, and there's something that can be done to fix it, you have an obligation to try.
I have a similar issue with Republicans who claim that, gosh darn it all, they'd love to extend full congressional representation to DC residents, but the Constitution doesn't allow it--if that's what you think the Constitution says, then you have an obligation to support an amendment to change it.
If Franken thinks Citizens United is wrongly decided, then regardless of whether he wants to exploit the holding, he still has an obligation to try and fix it however he can. The Fair Elections Now Act and the DISCLOSE Act--both of which I worked on helping to push back in 2010--both failed to pass the Senate because they were easily portrayed as something other than what the voters want: a direct repudiation of the Court. That's not the case with an amendment.
So if Democrats want to take the money and run, I can't fault them for that, provided that they commit to making sure this is the only election where it's possible. If they simply mouth words of disapproval while raking in every possible dollar, without really attempting to correct the Court's error, then that's shameful.