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December 29, 2011 2:03 PM Time to Amend: No More Half Measures in Campaign Finance Reform

By Derek Cressman

As 2011 drew to a close, cops wielding batons and pepper spray took their toll on “occupy” encampments across the country, one midnight raid at a time. A movement supposedly grounded in parks and public squares across the country was suddenly, rapidly losing the physical spaces where protesters had gathered. The media, having spent months demanding to know what all the fuss was about and what these people wanted, commenced earnest speculation over what the wave of evictions would mean for a movement they had been struggling to understand. Was this the beginning of the end? Could occupiers manage to continue applying political pressure without the plots of public land and tent cities? Would the movement last the winter?

I don’t know the answers to these questions—in all likelihood, it will take months, if not years, to truly understand what the Occupy movement has meant—but there is at least one way that occupiers have reached outside the confines of their movement and tapped into a concern that is steadily, quietly, picking up steam across the American electorate. Back in October, with minimal media fanfare, protesters began to disrupt political fundraisers in places like Pittsburgh, Tampa and Bloomington. By early December, a $35,000-a-plate dinner for the President’s campaign committee in Manhattan had been occupied, as had a holiday bash for the Democratic Congressional Campaign Committee. Though much of the national media continues to be as confused as ever, perplexed to see a supposedly left-wing movement confront Democratic politicians, efforts to occupy political fundraisers are simply the most public manifestation of a broader discontent over how our elections and politicians are funded.

This is hardly a new problem—reformers like myself have been fighting to reform campaign finance for decades—but for perhaps the first time ever, a real nerve has been struck in the American public. I first noticed this when giving a speech on the first year anniversary of the Citizens United decision, which allowed even more third-party independent campaign spending with very limited disclosure, and hearing the speaker after me at the podium suggest it was about time for people to start getting arrested in order to protest ruling. That was quite a big step beyond the angry letters to the editor that the movement had mustered heretofore. Though there have been many destructive Supreme Court rulings on issues related to campaign finance, 2010’s Citizens United seems to have sparked a fire unlike any single decision from the high court, arguably since Roe v. Wade. As a reform advocate in the 90s and 00s, I spent my time calling other civic groups and informing them about the role of big money in political campaigns. But after January 21st, 2010 when Citizens United changed everything, I suddenly found groups calling and asking me to come and explain a ruling that seemed so foreign to their basic values.

For decades, campaign finance reformers have sought to string together modest reforms, deploying resources to fight the winnable battles. Important gains were made particularly around state level public financing programs and distancing federal officials from directly soliciting the biggest of the checks. However, the grip of corporate money on the political process has only strengthened. Perhaps the time has come to move beyond incrementalism and demand radical changes to the campaign finance system rather. Perhaps it’s time for a constitutional amendment.

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Speaking truth to corporate power has appeal beyond the traditional left. Public opinion surveys have found only 15 percent of Democrats, 24 percent of Republicans, and 16 percent of Independents agree with the Citizen’s United ruling. After being informed more about the ruling in another survey, agreement dropped to 6 percent among Democrats, 17 percent among Republicans, and 13 percent among Independents.

To some, the prospects of actually passing a constitutional amendment appear too daunting to warrant the effort. It is tempting to focus on seemingly more achievable goals such as enhanced disclosure of political spending and reinvigorating public financing systems damaged by this and other court rulings. While these are important, winnable, and worthwhile goals, they don’t engage the issue head on and instead seek ways to live with a bad ruling rather than reverse it.

Reformers are more likely to succeed on these interim steps by strongly staking out our values in an amendment campaign. The effort to pass the Equal Rights Amendment in the 1970s failed to place any new words into our constitutional document but it largely succeeded in establishing supermajoritarian support for the principle that women and men should be treated equally. While we have not achieved true equality yet, significant gains have been made in the disparity of pay between men and women, more women are running corporations and being elected to office, and women now serve in the armed forces - the very step that ERA opponents arguably feared most. The fight over the balanced budget amendment yielded similar results on the right in the 1980s and 90s, and created a fiscal frame that continues to dominate today’s politics. Constitutional amendments are where American’s argue over our core values. Articulating and deepening those values are as important as enacting the actual textual changes in the Constitution.

We have in fact managed to amend the constitution 27 times and every amendment but one (prohibition) was in a progressive direction. Amendments have expanded democratic participation to former slaves, women, 18-year olds and removed the poll tax. Seven of these amendments took less than one year to ratify. Success requires a broad consensus across partisan and geographic lines as well as a deep commitment by a relatively small number of people to push the envelope for change. Woman suffragists won passage of the 19th amendment not only by winning broad agreement on the principle of voting but after activists known as the iron-lawed angels waged hunger strikes after being arrested for protesting outside the White House. This may just be the situation we find ourselves in now with the zealous Occupy movement willing to wage civil disobedience and widespread antipathy toward Citizens United that spans the usual partisan divide.

Voter Instructions

Beyond the deepening unrest demonstrated by the Occupy movement, the traditional reform tactics of lobbying Congress and prodding editorial boards to politely request action are being supplemented by more assertive actions.

In the wake of the Citizens United ruling, new outside the beltway organizations have sprung up. One, Free Speech for People, is taking bold stances like asking Delaware Attorney General Beau Biden to revoke Massey Coal company’s charter in response to its demonstrated negligence that killed 29 miners. Progressive TV and radio host Cenk Uygur has launched the WolfPAC, aimed at pressuring state legislatures to call a constitutional convention that would abolish corporate rights and prevent any politician from raising more than $100 from any donor.

Another coalition called Move To Amend, convinced the City Council in Madison, Wisconsin to place a non-binding measure on the ballot this spring that called for a constitutional amendment declaring that:

1. Only human beings, not corporations, are entitled to constitutional rights, and
2. Money is not speech, and therefore regulating political contributions and spending is not equivalent to limiting political speech.

Voters approved the question by 84 percent. Citizens in Boulder, Colorado and Missoula, Montana passed similar questions in November of 2011by three-to-one margins.

This December, city councils in Los Angeles and Oakland passed unanimous resolutions officially calling for constitutional amendments to end the false doctrine of corporate constitutional rights, and New York City and Portland will follow suit in January. It is perhaps no coincidence that these city councils were eager to demonstrate their bona fides with real people over CEO’s just weeks after their police forces tore down the occupy encampments.

Common Cause is planning to take the idea a step further by sponsoring state-level ballot measures that not only express support for a constitutional amendment but explicitly instruct members of Congress to do everything in their power to pass one.

The idea of voter instructions was used by populist reformers a century ago to push for direct election of U.S. Senators, who had previously been appointed by state legislatures. Muckraking journalists had exposed the outright bribery and corruption going on in legislatures to procure senate seats (not unlike what we saw with Illinois Governor Rod Blagovich recently). The House of Representatives had responded by repeatedly passing an amendment to call for direct election. Not surprisingly, the Senate balked every time.

Voters in Oregon bypassed the Senate deadlock and achieved direct election of their U.S. Senators in practice by passing a 1908 ballot measure that instructed the state legislature to appoint to the U.S. Senate the candidates who received the highest number of votes in an advisory general election. The system worked so well that in 1909 the Republican controlled legislature selected the people’s choice, a Democrat, to the U.S. Senate. Other states began using the Oregon model ensuring that more Senators who were, in effect, elected based on a popular vote. These Senators then became advocates for what became the 17th Amendment, facilitating its passage in 1913.

In fact, throughout the nation’s history, Americans have used voter instructions combat Supreme Court decisions that they felt overstepped its bounds, just as most Americans feel about today’s court and Citizens United. The 11th amendment to limit federal court jurisdiction, for example, was passed in direct response to instructions from the states of Connecticut, Massachusetts, North Carolina, and Virginia. Instructions also played a role in repealing prohibition.

As with the Occupy protests that intentionally intruded on the comfort level of polite society, the notion of “instructing” legislators risks alienating elites by turning the tables on who is presumed to be in charge. When citizens petition Congress, or write letters or e-mails asking them to take action, it reinforces a belief asserted by Edmund Burke that legislators are sovereign, and can rule as they wish unless and until members are un-elected. By reclaiming the practice of instructions, activists turn that assumed sovereignty on its head and remind representatives that they hold office to carry out the will of their constituents.

The power that the impolite voter instruction tactic holds even in today’s cynical and entrenched Washington, D.C. was demonstrated with the term limits measures which, prior to their rejection, carried great weight with members of Congress. The initiatives instructed members of congress to “use all of his or her delegated powers” to pass an amendment that would limit Senators to two terms and Representatives to three terms. They further specified that this included voting for an amendment, proposing or cosponsoring the amendment, supporting it in committee votes, opposing any efforts to delay a vote, and opposing any amendment that would lead to longer terms.

Congressional members from the term limit instructions states took great care to comply with these instructions and in order to accommodate these members the House voted on seven different proposed amendments so that each member had the opportunity to vote for the exact language as specified by their home state. Representative Hutchinson of Arkansas voted against a proposal by Representative Bill McCollum for a limit of six terms in the House “not because I am opposed to term limits but because this particular resolution does not comply with the term limit instructions approved by the voters and the people of Arkansas. … I am instructed by the Arkansas law and will vote accordingly.”

Representatives Dickey (AR), McInnis (CO), Carpo (ID), and Chenowith (ID) made similar statements. Representative Thune of South Dakota had his name removed as a cosponsor of the McCollum six year term limit bill because it did not comply with instructions from his state. While this example may show that the term limits proponents erred in making their instructions too specific so as to prevent broad support in Congress, they are testament that the power of voter instructions remains potent even in our modern era.

Voter instructions to reverse Citizens United would not compel every member of Congress to support an amendment. Senator Mitch McConnell of Kentucky, for instance, would likely rather risk electoral defeat as the price for defying his constituents than abide by their instructions. However, Senators such as Olympia Snowe and Susan Collins of Maine would be more likely to follow instructions. These two senators supported the McCain-Feingold bill in 2002 to place limits on contributions to political parties and ban corporate and labor funds from electioneering use, but then opposed far more modest legislation in 2010 to require disclosure of corporate and labor funds once the Citizens United ruling had unleashed them. These swing state Senators were willing to toe the party line in the 2010 DISCLOSE Act vote, but it is less certain they would chose their party over their constituents in the face of explicit instructions supported by strong margins of voters.


It requires 68 votes for a constitutional amendment to clear the U.S. Senate. That’s eight more than required to break a filibuster on traditional legislation. Getting eight additional votes for reform is not easy, but it is not insurmountable either. A constitutional amendment, as a simple but compelling statement of values, is in many ways harder for a politician to oppose than a detailed piece of legislation that is easy to pick apart with details.

Senators Earnest Hollings and Arlen Specter introduced a constitutional amendment to overturn the 1976 Buckley v. Valeo decision multiple times from 1978 to 2004. Their amendment received 40 votes during a floor vote in 2001, including votes from Republicans John McCain, Thad Cochran, and Ted Stevens. This was without the backing of major reform organizations or any public campaign around the proposal whatsoever. That suggests a rough baseline of support than an amendment campaign would be likely to start out with.

If voter instructions proves to be a successful tactic, it could provide the margin of victory needed to push a traditional advocacy campaign over the top. If direct lobbying, grassroots pressure, and support from editorial boards and opinion leaders can muster 40-45 Senate votes for an amendment, reformers would need to pick up 23-28 more votes in the Senate. That could be accomplished by passing voter instructions in 12-14 states. The spadework in the states would also lay the groundwork needed to win ratification by 38 states. That is not a simple task, but if indeed we are witnessing a transition from polite campaign finance reform advocacy to a newly defiant movement that is prepared to demand change both rhetorically and with real bodies in the streets, then maybe things will indeed be different this time.

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Derek Cressman is the director of the Campaign to Reverse Citizens United at Common Cause.
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Comments

  • Jimo on December 31, 2011 12:07 PM:

    Or voting instructions could be paired simultaneously with an actual call by the state legislature to call a national convention to propose amendments to the constitution.

    While this method of amendment has never been used, it should have several tactical advantages:

    1. It would be difficult for the legislature to object to a convention while also pushing voting instructions,

    2. Without precedent, the first several states calling for a convention would gain significant media attention to the cause,

    3. If the number of states gets anywhere close to the required two-thirds, expect rapid movement of a Congressional amendment as a means of controlling the process (the argument being that no one could control exactly what a convention might do), and

    4. It should be easier to get a large number of states to approve this than two-thirds of Congressman since there really is no regional opposition to this amendment and it's very difficult for secretive opposing forces to "bribe" thousands of individual legislators, especially since state legislators are very close to the people.

  • Anonymous on December 31, 2011 12:35 PM:

    Could say the SEC require that all corporations need to
    have a vote of share holders in order to contribute to
    political campaigns; with a possible list of candidates
    and amounts to be spent required. Could this be done by
    by executive order or regulations not requiring a congressional vote?
    PS fix your verification letters they are to hard to read.

  • Snarki, child of Loki on December 31, 2011 8:02 PM:

    I agree with Anonymous; this is first of all a question of the shareholders rights not to have THEIR property used for someone else's political objectives. "Theft by conversion" is the technical term.

    The easiest way? A state law in Delaware, since that is where the vast majority of US corporations are incorporated. Just require an explicit up/down majority shareholder vote for political expenditures, detailing the amounts and where the funds will go.

    Chances are, 90%+ of the votes will be approved, but the disclosure will help to keep companies in line; expecially after a few thousand irate shareholders and customers give them some hell.

  • JM917 on January 02, 2012 1:55 PM:

    @ Jimo:

    Unfortunately, going the constitutional convention route is very dangerous. Once convened (even for a good purpose, like overturning Citizens United), a convention would face no limits on what it could send to the states for ratification. It could propose to declare the United States a "Christian nation," with rights of non-Christians severely restricted, all guarantees of church-state separation abolished, abortion outlawed, and gay rights terminated. It could (and probably would) propose a balanced-budget amendment, and perhaps end the Fed and abolish income taxes. Nothing in the Bill of Rights would be safe, voting rights for unpopular minorities (including those receiving any form of public assistance) could be curtailed, and God knows what other mischief would be on the table. Much of this agenda would have powerful appeal in red states, which outnumber the blue ones, and blocking ratification of truly toxic stuff could be an uphill battle.

    There's a good reason why no constitutional convention has met since 1787--and that one, ostensibly convened to propose a few improvements to the Articles of Confederation, far outran its mandate.

    Better to stick with the congressional route, helped along by citizen instructions and a lot of angry demos.

  • John Eley on January 11, 2012 3:20 PM:

    If one wants to limit money in politics one could take the very prudent step of reducing the number of primaries. The more numerous the primaries the greater the number of media outlets to throw money at. If we return nominations to parties we reduce the need for primaries. At the same time we reduce the dangers that arise when extremist rhetoric is required to gain attention in primary campaigns. Left to their own devices parties will select moderate candidates, super pacs will have less to reason to exist and we can all gain freedom from incessant political ads.