JULY 09, 2012
Using the Exceptions Clause to Restrain an Out-of-Control Court
Why a Constitutional Amendment Isn’t Needed to Overturn “Citizens United”
While fund-raising public interest organizations have been beating drums for a constitutional amendment to overturn Citizens United, no constitutional amendment is needed because the Constitution already has provisions that allow Congress and the states to overturn Citizens United with ordinary legislation. One of those provisions states:
“the Supreme Court shall have appellate Jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make. (US Constitution, Article III, Section 2, Clause 2, Sentence 2) (emphasis added).
The revolutionaries who overthrew rule by the British Empire–and who then carefully wrote the Constitution to protect their new republic against tyranny–provided the simple and now well-settled means in the “Exceptions Clause” to restrain a Supreme Court that encroaches on congressional power. The Framers anticipated the problem of each of the three branches encroaching on another branch’s power and provided checks and balances on each.
The cause of the problem of money in politics is very specifically a Supreme Court majority overstepping its authority and usurping powers the Constitution assigns to Congress. In doing so, a narrow 5-member majority of the Court acted unconstitutionally. The problem is those 5 members–not the constitution. As Abraham Lincoln said, “we the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”
The Framers understood that an unelected Court could be the source of a new tyranny if checks on its power were not provided. The Exceptions Clause was designed to permit an ordinary majority of Congress to strip the Supreme Court’s appellate jurisdiction over a law or subject matter. The Framers designed that power to enable Congress to quickly put a stop to Supreme Court encroachment on congressional power, sidestepping the far more difficult amendment process. The Exceptions Clause was used as early as the Judiciary Act of 1789 to delineate the areas over which the Supreme Court had jurisdiction and areas over which the Supreme Court did not have jurisdiction. It has been repeatedly invoked since. Among the cases where the Supreme Court has confirmed the broad and absolute scope of the Exceptions Clause, perhaps the most significant involved the post-Civil War resistance to military rule of the South, Ex parte McCardle. In a more recent case Boumediene v. Bush, the Court rejected an attempt by Congress to strip the judiciary’s authority over the inherently judicial power to issue a writ of habeas corpus.
Congress could overturn Citizens United by including a clause under Article III, Section 2 stating that “no federal court shall have jurisdiction to hear a case involving constitutional review of this act” when it reenacts legislation restricting corporate and other private money in elections.
The most important and legitimate use of the broad “Exceptions Clause” power is to preserve the separation of powers and federalism against an overreaching Supreme Court. Overreaching is precisely what the Supreme Court did in the line of cases leading to Citizens United: The Constitution in Article I, Sections 4 & 5 expressly assigned to the state legislatures and Congress–not the Court–the ultimate power to define and judge election integrity. The Court encroached on Congressional power in taking up and deciding Citizens United and related federal election cases.
Not content with encroaching on Congressional power regarding federal election law, the Court also violated state sovereignty by requiring Montana to enforceCitizens United in violation of Montana election law and in violation of Montana’s sovereign immunity. 11th Amendment sovereign immunity strips the federal courts of jurisdiction to hear private suits against states. Thus, the Supreme Court should never have accepted this private suit against Montana. But the Court has invented doctrines to negate this 11th Amendment state sovereign immunity from suit.
The Exceptions Clause provides the right tool for Congress to rein in the Supreme Court. It provides a powerful means for Congress to correct the Court’s breach of congressional authority, its breach of state’s rights, and its breach of the separation of powers. It allows Congress to quickly repair the damage the Supreme Court did to the democratic integrity of both state and federal elections. The Exceptions Clause has substantial advantages over each of the available alternatives that Congress has used to rein in an errant Court, including a change of the number of justices on the Court, impeachment, and the favorite of fund-raising organizations, a constitutional amendment.
By far the most satisfactory of the various draft amendments is that written by Prof. Tribe of Harvard, which uses the formulation for overturning a Supreme Court decision used by the very first such Amendment, the 11th Amendment: that the Constitution “shall not be construed” to mandate certain money in politics. But then this drafts’ attempt to define the Court’s role in ruling on money in politics has its drawbacks by conveying to the Court powers that it does not now properly have. Hence even the best of the drafts would still ratify some aspect of the Court’s illegitimate power grab which the current Constitution does not support.
In addition to these three options for congressional oversight, the Court’s self-imposed political question doctrine for many years protected the Court from overstepping its bounds and encroaching on the powers of the elected branches of the federal government or of the States. From the very outset of the exercise of judicial review in the 1803 Marbury v. Madison case, the Supreme Court itself eschewed any authority to exercise powers of constitutional review over political questions. The Court defined a political question as involving 1) matters “which are, by the constitution and laws submitted to” another branch or 2) matters “whose subjects are political. They respect the nation, not individual rights.”
Elections fit both tests. First, Article I, Sections 4 and 5 of the Constitution assigns the whole subject of elections to state legislatures and to Congress. Second, election financing and election integrity respects the nation as a whole, not any particular individual’s or group’s rights. Elections are the quintessential political subject. Moreover, the Court’s excuse for encroaching on the political subject of election financing, by purporting to protect the “right” of all the nation’s voters to receive all electioneering messages, is also political. In Citizens United and related cases, the Supreme Court based its protection of electioneering expenditures not on any individual’s or corporation’s free speech rights, but instead on a “right” of all voters–the nation as a whole– to receive electioneering information from any source.
According to Professor Laurence Tribe of Harvard: “The little-noted theory of Citizens United, after all, was not that corporations enjoy all the rights that ordinary people enjoy but, rather, that the First Amendment protects ‘speech’ and listeners, not particular ‘speakers.’” The court’s novel interpretation of the 1st Amendment places the subject matter outside Court jurisdiction as it fits the very definition of a political question of the second type, a national issue not an individual rights issue.
The Court’s consideration and decision of such a case is equally objectionable under “standing” doctrine. For example, in United States v. Richardson, 418 U.S. 166 (1974), the Supreme Court properly declined jurisdiction to hear “generalized grievances” concerning a right shared by all citizens to access information, even information that the government was constitutionally required to provide.
With the sole exception of properly enforcing the one person, one vote principle to overturn anti-democratic legislative minorities entrenched in power by the mal-apportionment of voting districts, the political question doctrine foreclosed the federal judiciary from hearing cases about elections down to 1976. The political question doctrine was considered an essential bulwark defining the boundary between the separate judicial and legislative powers for nearly 200 years. In the Madisonian model, each branch of government has the obligation to maintain this bulwark. Madison explained in Federalist 47:
The accumulation of all powers legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
Congress neglected to protect its own powers over election integrity after the Court first encroached on them in the 1976 case Buckley v. Valeo. That case was also the first time the court ruled that money in politics is equivalent to the speech protected by the judiciary under the First Amendment. With money flowing, Congress quickly became comfortable with the Court’s corrupt “money is speech” electoral regime, managing the public relations fallout with ineffective piecemeal campaign finance reforms. The Court predictably riddled those reforms with further holes, especially accelerating after the Roberts 5 took over the Court in 2006. The result of Congress’ failure since 1976 to maintain its side of the separation of powers bulwark has been a steady descent into corrupt, anti-democratic, and illegitimate elections, entrenching the political and economic tyranny of the 1% that the Occupy Movement protested.
Stripping the Supreme Court’s jurisdiction to hear cases involving constitutional review of election financing legislation would restore the traditional political question doctrine in this area of law, check an errant Court and re-balance the separation of powers.
A law stripping the Court of jurisdiction would enable Congress to restore previously enacted election financing laws by a simple majority vote. It would also strip Congress of its excuse for not completing the task of cleaning up its corrupt political order by totally banning all private interest money from elections.
Most Americans think corporations, Wall Street, and their lobbyists have too much influence in Washington and that new campaign finance laws are required to end this situation. But most advocacy organizations fundraising to overturn Citizens United recoil at the thought of Congress using its constitutional power to remove Court jurisdiction over anything, including over this paramount issue driving political inequality and democratic decline, even though that very issue underlies the failure of many of these same organizations to achieve substantial victories against the 1% since the late1970′s.
One public interest organization that contributed an early and active voice to the campaign for a constitutional amendment, Public Citizen, provides an example. In an email to one of its members, its Senior Organizer reported:
… as a policy matter we [the organization] do not support limiting the jurisdiction of federal courts. We have long stood for the principle that the federal courts should be open to hear constitutional claims of all kinds. If a power to revoke jurisdiction were exercised, it could easily be subject to a host of abuses that would prevent legitimate constitutional claims from being heard in the federal courts — and that outcome is much more likely than revocation only in cases we like.
Basing itself on the “slippery slope” fallacy that a host of abuses will follow, this organization opposes Congress using the Exceptions Clause power the founders provided to Congress in the Constitution to even stop an overreaching Court from corrupting and undermining democracy. As we will see below, the slippery slope argument is flawed.
Adhering to this view, the organization diverts from the task of organizing and mobilizing to force Congress to rein in the Supreme Court before the 2012 election, to overturn Citizens United and related decisions using the Exceptions Clause, and to free elections from private financial influence. Omitting mention of the solutions already contained in the Constitution, this organization and others like it incorrectly assert in public emails that the only solution to Citizens United is amending the Constitution.
But an amendment is not the only solution. It is not even a good solution, if it can provide any solution at all in the current context. As Elizabeth Drew, a veteran observer of the problem of money in politics, has written, amending the Constitution is “[t]he most popular and most wrongheaded proposal.” She observes that some amendment versions are “offered by groups active in political reform such as Common Cause and Public Citizen, and also by individuals—all of whom should know better than to go down this quite dangerous road.”
Democratic politicians, who simultaneously wish to persuade voters that they are against money in politics–while continuing to sell out the public’s interests to their campaign contributors–also prefer the Constitutional Amendment to denying the Court jurisdiction.
Another constitutional provision–the 11th Amendment–could have enabled Montana to maintain its state anticorruption law and set an example all states could have followed to effectively overturn Citizens United on a state-by state basis. Montana’s state Supreme Court’s had presented well-reasoned and courageous resistance to Citizens United in deciding that the federal case did not apply in Montana. But Montana’s Democratic Attorney General deliberately and ignominiously lost his defense of his state Supreme Court’s decision by his refusal to assert the Constitution’s 11th Amendment “sovereign immunity”—the constitutional provision that strips the federal courts of jurisdiction to hear private suits against states.
Under a Supreme Court rule applicable to no other constitutional provision, a state must assert its sovereign immunity before the Supreme Court will consider whether it has jurisdiction. The Montana AG used as his only excuse for the monumental litigation error of not asserting Montana’s sovereign immunity from suit the same slippery slope fallacy used by Public Citizen. His spokespersons reported the AG’s concern about unnamed “potential implications in other contexts” if the state was successful in asserting its 11th Amendment’s stripping of the Court’s jurisdiction over such a case by private corporations against a state.
The Montana AG and Governor then immediately used the unnecessary loss as an occasion to advocate for a constitutional amendment. They sought no congressional action to require the Supreme Court to enforce the 11th Amendment.
The singular rationale for ignoring the two most effective, easiest and least dangerous solutions for money in politics–the Exceptions Clause and 11thAmendment sovereign immunity– illustrate the logical fallacy known as the slippery slope, a phrase that includes the rhetorical expression of an irrational fear that a “host of abuses” or “implications in other contexts” will logically follow from a given act.
At a time when the public is broadly aware that elections, democracy, and the republican form of government are drowning in a sea of corporate and other private interest money, what Democrats and their allied fund-raising organizations, including Public Citizen and others, have not provided is a plausible legal argument that the founders were wrong about how to check the Court when it oversteps its authority, whether against Congress or against the states. Instead they justify their rejection of the strategy provided by the Framers with a logical fallacy.
In her dissent from National Federation of Independent Business v. Sebelius, the suit against Obama’s “Affordable Care Act,” Justice Ginsburg derided the majority’s use of the slippery slope fallacy: “One could call this concern “the broccoli horrible.” She chided the majority’s commerce clause ruling:
When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9;Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”).
The proposal to use ordinary legislation to at once restore congressional authority over elections, restore the political question doctrine, get the Court entirely out of the field of election finance law, restore previous restrictions on corporate and other private money in elections, and enact new law removing all private interest money from elections, is not on the slippery slope that Public Citizen and others fear. Nor does the 11th Amendment have a slippery slope feared by Montana’s Attorney General who violated his oath to support the Constitution by illustrating his lack of support for one of its provisions, the 11th Amendment. Unique features provide sufficient traction to prevent descent down any specious slope to create the feared “host of abuses,” such as restoring segregation or banning abortion. The following reasons enumerate why there would be no causal relationship between the proposed valid use of the Exceptions Clause in the area of election finance law and its feared abuse in other areas of law:
1. Stripping Court jurisdiction would restore the original status of the Supreme Court’s exclusion from deciding political questions about election financing. Other feared issues on the imagined slope, such as segregation and abortion, are not political questions. They involve otherwise constitutionally protected individual rights or group rights. Moreover there was no “host of abuses” during the nearly two centuries that the Court maintained the separation of powers by observing the political question doctrine. Restoration of the doctrine should not entail such feared abuse.
2. Stripping Court jurisdiction would re-assert state and congressional powers over the manner of conducting and judging elections that are expressly granted to state legislatures and to Congress by Article I, Sections 4 and 5. Other feared issues on the imaginary slope were not expressly assigned to Congress. For example, the Constitution does not say that Congress shall regulate and “be the Judge” of women’s private reproductive decisions, nor of the segregation of the races. Indeed, other than impeachment, under no other issue has judicial power been expressly assigned to Congress.
3. Stripping Court jurisdiction over traditional political questions would maintain the separation of powers provided by the Constitution to protect Congress from judicial encroachment on legislative powers. The host of horrible down the imagined slippery slope all involve fears of encroachment in the opposite direction–by Congress on judicial powers rightfully within the Court’s jurisdiction.
4. The Exceptions Clause is no secret to be kept under a blanket of silence to prevent its use for anti-democratic purposes. The power has been in the Constitution and used since 1789. It has been invoked not infrequently, though actually exercised by Congress only with restraint imposed by the public’s respect for the Constitution and the Supreme Court’s symbolic role as its guardian. Indeed, its only proper and practically possible use would be when there is a general consensus that the Supreme Court itself has abused its interpretive function for partisan purposes, as they have in the Citizens United line of cases that have been used to install minority plutocratic rule.
5. Enactments of Congress have no precedential character. One use of a legislative power does not necessarily lead to another use in a different case, or even in a similar case. Legislation is determined by the votes available to support it, by the rule of the majority, or a super-majority in some instances like proposing a constitutional amendment or judging impeachment. Legislative outcomes are not determined by the case by case precedent comprising the rule of law that is supposed to guide the courts. Long-standing and proven policies like, say, New Deal bank regulation to guard against casino capitalism financial crises, are dismantled when the influence is acquired to do so. Precedent plays no role. But if any precedent were uniquely needed for use of the Exceptions Clause that precedent was first laid down in 1789 when Congress initially established, and at the same time limited, the jurisdiction of the Supreme Court, and its use has been continuous to this day.
6. No tacit bi-partisan peace treaty exists that if the Exceptions Clause power is not used to defend democracy for the 99%, then the 1% will refrain from its use to empower themselves and undermine democracy.
7. On the contrary, presidential contender Ron Paul has repeatedly in the last several Congresses sponsored bills under the Exceptions Clause (e.g., H.R. 958, 112th Cong., 2011) that would erode Supreme Court jurisdiction to protect first amendment, privacy, and marriage equality rights. Republicans relish the prospect of jurisdiction-stripping. U.S. Senate Republican Policy Comm., The Case for Jurisdiction-Stripping Legislation: Restoring Popular Control of the Constitution (Sept. 28, 2004).
Newt Gingrich, the Las Vegas billionaire’s candidate of the 2012 primaries, issued a detailed position paper promising that if elected he would use the Exceptions Clause to strip court jurisdiction for his own illegitimate pet issues. His position paper suggests that he would “explicitly provide by statute that any federal judge that refused to adhere to the legislative limitations on jurisdiction would be subject to impeachment and removal from office,” as did Ron Paul’s bill.
Gingrich makes no suggestion that he would refrain from this anti-court strategy and others that go far beyond the Exceptions Clause if professional activistsrefrain from advocating use of the Clause now, when vital to restore democracy. Nor does he indicate that he requires the precedent of some prior use of the power by his political opponents in order to execute his broad plan to undermine the federal judiciary. One could well argue, better to use the powers that the legitimate exercise of the Exceptions Clause makes available to get the money that sustains Gingrich out of politics now before that money buys such pro-1% politicians the power to achieve their own illegitimate jurisdiction-stripping plans, and much more, later.
8. An example of such lack of causal relationship between the respective partisan usage of legislative tactics has occurred recently in the area of Senate Rules. This is an area where some bi-partisan comity has in fact traditionally occurred. But the Senate Democrats’ restraint when they were last in the minority from using the filibuster to oppose Bush nominees and war spending dramatically failed – after the tables turned – to elicit any reciprocal restraint by Senate Republicans from filibustering more than had any previous Congress. The Democrats’ historic failure to filibuster Alito’s appointment to the Court in 2006 was the proximate cause of the current crisis of democracy symbolized by Citizens United, which would have been decided the other way before the known extremist judge joined the Court. Anyone who would believe that even a major historic restraint in the use of Exceptions Clause powers – a subject where no traditional comity is even relevant – might be greeted in any other way is just not paying attention to the heightened partisan competition for 1% money occasioned by the new Roberts 5 election law regime.
Another even more relevant example of the absurdity of the slippery slope argument could be offered by turning the argument around against the amenders’ favorite strategy. Amendments have been regularly proposed to take away the same rights, such as abortion, feared to reside down the slippery-slope, even more in number than Exceptions Clause bills. Then why does their fallacious theory not cause amenders themselves to refrain from seeking an amendment so as not to set another “precedent” for authoritarians to deploy the often invoked but rarely executed Amendments Clause (Art. V) of the Constitution to attack those same threatened individual rights? The argument should apply with additional force to any proposed Citizens United amendment since use of an amendment to resolve an issue of separation of powers and federalism between the Court alone on one side and Congress and the States together on the other (with a President who is mostly missing in action on the issue) would actually set a new precedent, albeit a wastefully unnecessary one. Why should the amenders “host of abuses” fears apply only to the Exceptions Clause? If it were logically and consistently applied, the slippery-slope fallacy would have us all just stop fighting to rescue democracy due to fears of how the 1% might reciprocate any of our tactics.
9. The power to strip the Court of jurisdiction for authoritarian purposes was already attempted by the adoption of bills by respectively the House (Pledge Protection Act, 2004 and again in 2006) and Senate (school prayer, 1979) to accomplish different illegitimate curtailments of core First Amendment rights to free speech. In addition Congress has considered other illegitimate jurisdiction stripping legislation regarding internal security law, legislative apportionment, anti-obscenity law, anti-abortion law, police techniques, racial segregation in public schools, and establishment of religion. The House even adopted such a provision against marriage equality (H.R. 3313, 108th Cong., 2004). In each case these initiatives failed to become law because the proponents lacked broad non-partisan public support for their authoritarian proposals, not because of some notional deficiency in the niceties of precedent by progressive use of the Exceptions Clause. The slippery-slope fallacy understates the amount of such activity from authoritarians already planned and underway. If money stays in politics the popularity of such bills during the Bush administration suggests the likely success of one or another of these bills in the next Republican administration, irrespective of any additional “precedent” in the use of court-stripping for the legitimate purpose of maintaining the separation of powers and restoring democratic elections.
10. None of the feared authoritarian uses of the Exceptions Clause power imagined to be lying further down a slippery slope would involve restoration of the separation of powers and the political question doctrine, or the protection of powers expressly granted to Congress. Nor do they involve an issue of singular importance driving the overall decline of democracy with respect to every issue of majority concern unaligned with the 1% and therefore one capable of generating a non-partisan mass movement sufficient to force a neglectful, complacent and corrupt Congress to take effective action.
For these ten interconnected reasons, there is no causal connection between use of the Exceptions Clause for the purpose of stripping the Court of jurisdiction over state and federal election financing issues and any other use of the power feared by those who invoke the specious slippery slope fallacy.
To neglect the powerful Exceptions Clause tool for fear of the slippery-slope would be to commit the classic strategic error of unilaterally disarming the 99% from their use of the most effective strategy available in the hope that the 1% will reciprocate. But all evidence and experience counsels that the 1% will use all legitimate and illegitimate means within their grasp to accumulate power and profit while undermining any democratic means to stop them. As Gene Sharp, a leading scholar on strategies of democratic resistance, points out, “[a] halt to resistance rarely brings reduced repression.”
Article I, Section 4 of the Constitution, mentioned in point # 2 on the above list, gives “State Legislatures and Congress” the power to set the “Times, Places, and Manner of holding Elections.” The manner of holding elections includes the role and affect of money in them.
Article 1, Section 5 states that “each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.” Because the power to “be the Judge” of violations of its laws regulating the “Manner of holding Elections” is specifically delegated to Congress by the Constitution, Congress could invoke its defense of the separation of powers as a reason to remove this task from the Judiciary–even in the absence of the Exceptions Clause. Neither using the Exceptions Clause nor simply defending power specifically assigned to Congress by the Constitution should raise the specter that this use of the power would lead Congress to revoke Court jurisdiction over any other issue than election financing. What is most significant is not the choice of existing constitutional provisions for reinstating legislative power over elections, it is the substance of using those existing provisions to restore democratic elections and the exclusive responsibility of the elected branches for that task.
The Constitution makes the extraordinary provision that Congress “be the Judge” of elections because elections are the very heart of the republican form of government. The Framers deemed the elected Congress best able to protect election integrity. Were elections to be corrupted by the unelected judiciary, the revolution against tyranny the Framers led could revert to the tyranny they opposed. History has borne out this judgment, as Congress has, in effect, conducted a laboratory experiment questioning the wisdom of the framers in establishing the separation of powers. The People need to bring a halt to this failed experiment because Congress has been too corrupted by the Supreme Court’s usurped power over elections to do so itself.
An amendment would require the significantly larger 2/3 vote of Congress as well as ratification by 3/4 of the states. Advocates of the constitutional amendment approach will occasionally question the ability to force a corrupt Congress to pass a jurisdiction-stripping law, while ignoring that even more members of the same Congress will be required to propose a constitutional amendment. A future Congress would be needed to enact legislation to make the amendment effective. But 38 state legislatures would first need to support an amendment.
After the Court’s ruling in American Tradition Partnership v. Bullock, 567 U. S. (2012), rejecting Montana’s refusal to apply Citizens United to state elections, state legislatures now must operate within the same Court-imposed corrupt electoral regime as Congress (unless another state successfully litigates a defense of its state election integrity law by asserting the states’ 11th Amendment immunity, avoiding Montana’s error). Thus, under the corrupt system now in place in Congress and in the states, adoption and ratification of a properly worded amendment against the interests of those who buy elections is substantially less likely. The following complaint of an editor of a conservative publication has bipartisan application: “constitutional amendments are a cheap and easy way to pretend to deal with issues that fire up the Republican base but bore the GOP establishment.”
Instead of defending the Constitution from the Roberts 5 by directly stripping them of their authority over election finance matters, advocates of a constitutional amendment would provide new text to guide the Court on how to use the congressional power it has improperly usurped. Their amendment would legitimize at least some of the illegitimate usurpation of power by 5 judges over elections. Even the act of campaigning for an amendment, aside from its low probability of success, tends to legitimize the Court’s jurisdiction over elections and Congress’ abandonment of this political question to the Court. To the extent the long campaign for a constitutional amendment claims to be the only possible solution and thereby misleads large numbers of people away from the tools already in the Constitution, waiting to be used, it may “fire up the base” to make contributions to fund raising organizations and politicians but will likely serve primarily to perpetuate the problem of money in politics into the indefinite future.
A constitutional amendment adds text to the Constitution that is supposed to guide the public and all three branches of government. But organizations pursuing an amendment demonstrate that the text of the Constitution does not guide them as they argue against ever using the Exceptions Clause or the Eleventh Amendment as a check and balance against illegitimate Court encroachment on state and congressional power. Much less can we expect any new constitutional amendment to guide a Supreme Court that has already demonstrated its disdain for such constitutional principles as election integrity, congressional authority over elections, state autonomy, the separation of powers in the field of election integrity, and long-established 1st Amendment precedent that allows Congress to regulate transactional or symbolic speech such as money in politics.
The Roberts 5 will surely find a way to interpret any amendment’s virgin text in light of other constitutional provisions, including the First Amendment, to continue to empower the 1%, and and disenfranchise the 99%. As Trevor Potter, former FEC Commissioner and now Steven Colbert’s lawyer, has said, there are serious flaws in “talk of a constitutional amendment. Not only would such an amendment be hard to draft, putting the interpretation right back into the hands of the Courts, but I think talk of an amendment encourages avoidance of the hard work that should be done to solve these problems. For there are legislative solutions … ” An amendment will predictably not be interpreted by the Roberts 5 to mean what its promoters hope it means, even if their favored version of the many amendments floating around were to be the one adopted. The constitutional amendment approach thus appears to be irrationally self-defeating while at the same time being far more difficult to achieve than jurisdiction-stripping legislation.
Several of the 18 constitutional amendments so far proposed primarily address corporations having rights of persons. Though “corporate personhood” has become a highly publicized soundbite since the decision of Citizens United, it is in fact legally irrelevant to the Supreme Court’s illegitimate decisions mandating private money into politics. Those decisions actually rely, not on any corporate rights, but on the right that the Court creates for voters to receive information from any source. By addressing the “corporate personhood” soundbite, which has nothing to do with the contemporary issue of money in politics, some of the proposed amendments would incidentally legitimize the unlimited election spending by non-profits and wealthy individuals. This would carve a huge loophole in the Constitution and could have the unintended consequence of permanently entrenching money in politics.
One such proposed amendment seems to also unintentionally prohibit the fairness doctrine, anti-propaganda, and equal time requirements for broadcasters as authorized by existing law.
An amendment that passed Congress and 38 states could well be full of similar unnecessary, and presumably unintended, consequences that the Roberts 5 are fully able and eager to exploit to continue corrupting politics and entrenching judges like themselves into the foreseeable future. The organizations promoting such amendments are asking their well-motivated followers, in effect, to take aim and shoot themselves in their own foot by sending money to support further propagation of such counter-productive ideas.
In the absence of such a constitutional amendment, the 99% can continue to advocate under the existing Constitution for legislation that would at the same time place election laws once again outside the scope of the Court’s authority and also immediately aim a full panoply of complex legal tools at the problem of money in politics. An amendment addressing a non-existent defect in the Constitution, if adopted, would end that possibility without itself having applied any single legal tool to the actual problem of money in politics.
The prudential rule “if it ain’t broke don’t fix it” should apply here. The problem is not with the Constitution. The problem is with a Court majority politically motivated to empower the 1%. What is broken should determine what should be fixed, using the right tool for that job. One does not use a hammer to insert a screw. Especially not when you already have the screwdriver at hand and a hammer is far away. The public should be urged to demand that Congress use the existing Constitution to defend democratic elections and the separation of powers from an out of control Court majority before seeking the more remote and inappropriate tool for reform.
A constitutional amendment is the most difficult and uncertain option to achieve, the least effective, and has the highest risk of being downright counterproductive if not actually fatal to the prospect of restoring democracy. Better to advocate impeachment of at least one of the Roberts 5–even starting with the judge who wrote the Citizens United ruling asserting, without any evidence, that money does not corrupt elections. Or advocate adding more members to the Court, as did FDR–whose “court packing” proposal resulted in the switch he sought. At least those strategies would do no harm, while also being easier to achieve, and more effective than an amendment in the hands of the current Court lineup.
Far and away the best option is the remedy the Framers tailor-made for this problem: Congress’ Exceptions Clause authority to maintain federalism and the separation of powers by excepting from the Supreme Court’s jurisdiction cases that present political questions, such as election financing of state or federal elections.
Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United for Essential Information, an organization founded by Ralph NaderJames Marc Leas is a patent lawyer in South Burlington, Vermont