01.06.18 What to do about Citizens United (you might not like the answer)

Q: What should we do to overturn the infamous Supreme Court ruling in Citizens United, which opened up our political process to corrupt ownership by big business?

A: Bupkus. Nada. Rien. Not a damn thing.


According to the Federal Register:

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.… A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States).

Also (from Wikipedia):

While there have been calls for an “Article V [states-intiated] Convention” based on a single issue such as the balanced budget amendment, it is not clear whether a convention summoned in this way would be legally bound to limit discussion to a single issue.

Take note:

1. A whopping supermajority is required to get a constitutional amendment through Congress. There’s a good reason why no amendments have been passed and ratified since the 27th Amendment in 1992.* Before that, the Equal Rights Amendment (ERA) essentially failed in 1977, notwithstanding broad support for it in the country.

Supermajorities require substantial consensus between political parties, something that has become less and less possible since the ERA went down. It is no accident that the ERA failed just as the right-wing, religious backlash against the libertine ’60s became politically salient. We all know what happened since: the GOP became ever-more reactionary and took over more and more of the land area of the US, to the point where you can’t find a Republican today who accepts facts or would join with Democrats to agree that bubonic plague is a bad thing.

Get this: there will be no congressionally passed constitutional amendment in our lifetimes, unless there’s a profound change in the nation’s fundamental political ethos (or unless the GOP gets 2/3 control of Congress). I ain’t exactly holding my breath.

2. A constitutional convention may actually be easier to call for (than going through Congress), given right-wing geographic dominance and the power bonus the Constitution provides for sparsely populated areas (e.g., Wyoming gets the same number of senators as California). The population of the 34 least populated states (102.9 million) doesn’t compare to the largest 16 (222.1 million)**, but almost all are completely right-wing and each state counts as one vote for purposes of calling a convention. So, even with a huge majority of  Americans opposed, a right-wing minority could call and dominate a convention.

If a constitutional convention were called to address a single issue, the odds are overwhelming it would be for a mandated balanced budget, not to overturn big-money control of our politics.

3. Wait: it gets worse. The constitution says nothing about how a constitutional convention would be governed or how/whether its scope could be limited. Scholars have differing interpretations of what would take place at a constitutional convention, but no one really knows, because the last such convention in the country was the one before we became a country. So, imagine a convention that ends up overturning the First Amendment or outlawing abortion or mandating machine guns in schools. Anything could happen.

Here’s a summary of the discussion to this point:

  1. Any amendment through the tried-and-true process (passing Congress and then getting ratified by the states) is an extremely unlikely prospect. Like, when pigs fly.
  2. It could be easier to call a convention than to get an amendment through the more common way.
  3. The dangers of a runaway convention are so astronomical that the risk*** is overwhelming. And we know enough to be certain that the results of any such convention will not be what progressives hope for.

Here’s something else to consider. Even though the GOP would never accept this, there are certain elements of reality that can’t be repealed (like the laws of thermodynamics). The one that applies here: any human being or group of human beings has a limited supply of attention and energy. If we spend time on x, we are not spending that time on y. (Yeah, talented multitaskers might spend time on multiple priorities, but there will be an opportunity cost to y of the time they spend on x – there’s no getting around it.) Consider this a human law of thermodynamics.

Let’s apply this law to the current case. If a hundred or a thousand progressives are devoting their time and energy to getting an anti-Citizens United amendment through Congress, they are not devoting that expended effort to things like: producing a sweeping Democratic victory in November or fighting for immigrants’ rights or protecting health care as a right. Given the unlikelihood of success, this amounts – at the very least – to a nearly criminal waste of time.

To the extent these sweet (but misguided) folks are actually hoping for a constitutional convention, their odds are slightly better, but the outcome would likely be catastrophic

Citizens United can be combatted piecemeal through legislative campaign-finance reform measures, including at the state level. (Let’s pass public financing in Maryland!) Will this make up for the full impact of CU? No. But it will make things somewhat better. And it won’t be dangerous or a complete waste of time try. CU itself will not be overturned until we get a different Supreme Court. And that won’t happen until Democrats start winning elections everywhere and at all levels. Hmmm. That sounds like a project worth working on.

*It took 202 years to ratify this common-sense mandate preventing a sitting Congress from raising its own pay.

**See 2017 population estimates.

***Risk more or less equals likelihood of a bad outcome multiplied by how bad the outcome is likely to be.

©2018 Keith Berner

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