The wealthy have always been more equal than the rest of us, even when the Republic was still a babe and even in the aftermath of FDR. But it’s far worse these last thirty years. You’ve bitched and moaned, am I right? that we need elections funded by public dollars and small donors. You’ve ranted and ground your teeth that any legislator who wants to can leave Congress and immediately triple his salary working as a lobbyist. Until recently, getting an indifferent Congress to fix those problems–impossible as that seemed–were all (all?!) we would have needed to do to make the commoners equal … sort of, anyway … to the moneyed interests. But now SCOTUS has ruled that corporations may waltz in and purchase any election that takes their fancy. Now that the Court has upped the ante for even getting dealt a hand of cards in this country’s democracy, the citizenry won’t be in the game at all unless we can ante up. And the only way to do that is with a Constitutional amendment to rein in corporate spending in our elections.
Rep. Donna Edwards has proposed a bill to start that process, and Free Speech for PEOPLE.org is organizing a national campaign to support her.
Friday morning, I called Rep. Lacy Clay’s office to ask whether Clay is aware and supportive of Rep. Edwards’ proposed amendment. Not yet, it seems. Or at least, Britney in his office is not. She said she’d look into it and get back to me. A few more phone calls (202-224-6154) might make Clay aware more quickly. Other Missouri representatives need to be asked the same question. (You can get their phone numbers here.)
Actually, Lawrence Lessig, writing for The Nation about “How to get our democracy back” would tell me I’m dreaming if I think Congress is going to initiate the absolutely crucial Constitutional amendment. He might mention that Roberts et. al. have effectively granted Big Business the right to blast out of the water any legislator that doesn’t cozy up to it, and to support that claim Lessig could point to what Edwards herself said: namely that she worries that corporations will spend money attacking her in her own district for even presuming to offer an amendment. She’s doing it anyway, but then she’s one of the brave ones.
But Lessig does lay out what he thinks needs to be done. He has this vision:
What would the reform the Congress needs be? At its core, a change that restores institutional integrity. A change that rekindles a reason for America to believe in the central institution of its democracy by removing the dependency that now defines the Fundraising Congress. Two changes would make that removal complete. Achieving just one would have made Obama the most important president in a hundred years.
That one–and first–would be to enact an idea proposed by a Republican (Teddy Roosevelt) a century ago: citizen-funded elections. America won’t believe in Congress, and Congress won’t deliver on reform, whether from the right or the left, until Congress is no longer dependent upon conservative-with-a-small-c interests–meaning those in the hire of the status quo, keen to protect the status quo against change. So long as the norms support a system in which members sell out for the purpose of raising funds to get re-elected, citizens will continue to believe that money buys results in Congress. So long as citizens believe that, it will.
Citizen-funded elections could come in a number of forms. The most likely is the current bill sponsored in the House by Democrat John Larson and Republican Walter Jones, in the Senate by Democrats Dick Durbin and Arlen Specter. That bill is a hybrid between traditional public funding and small-dollar donations. Under this Fair Elections Now Act (which, by the way, is just about the dumbest moniker for the statute possible, at least if the sponsors hope to avoid Supreme Court invalidation), candidates could opt in to a system that would give them, after clearing certain hurdles, substantial resources to run a campaign. Candidates would also be free to raise as much money as they want in contributions maxed at $100 per citizen.
The only certain effect of this first change would be to make it difficult to believe that money buys any results in Congress. A second change would make that belief impossible: banning any member of Congress from working in any lobbying or consulting capacity in Washington for seven years after his or her term. Part of the economy of influence that corrupts our government today is that Capitol Hill has become, as Representative Jim Cooper put it, a “farm league for K Street.” But K Street will lose interest after seven years, and fewer in Congress would think of their career the way my law students think about life after law school–six to eight years making around $180,000, and then doubling or tripling that as a partner, where “partnership” for members of Congress means a comfortable position on K Street.
Before the Supreme Court’s decision in Citizens United v. FEC, I thought these changes alone would be enough at least to get reform started. But the clear signal of the Roberts Court is that any reform designed to muck about with whatever wealth wants is constitutionally suspect. And while it would take an enormous leap to rewrite constitutional law to make the Fair Elections Now Act unconstitutional, Citizens United demonstrates that the Court is in a jumping mood. And more ominously, the market for influence that that decision will produce may well overwhelm any positive effect that Fair Elections produces.
This fact has led some, including now me, to believe that reform needs people who can walk and chew gum at the same time. Without doubt, we need to push the Fair Elections Now Act. But we also need to begin the process to change the Constitution to assure that reform can survive the Roberts Court. That constitutional change should focus on the core underlying problem: institutional independence. The economy of influence that grips Washington has destroyed Congress’s independence. Congress needs the power to restore it, by both funding elections to secure independence and protecting the context within which elections occur so that the public sees that integrity.
No amendment would come from this Congress, of course. But the framers left open a path to amendment that doesn’t require the approval of Congress–a convention, which must be convened if two-thirds of the states apply for it. Interestingly (politically) those applications need not agree on the purpose of the convention. Some might see the overturning of Citizens United. Others might want a balanced budget amendment. The only requirement is that two-thirds apply, and then begins the drama of an unscripted national convention to debate questions of fundamental law.
Many fear a convention, worrying that our democracy can’t process constitutional innovation well. I don’t share that fear, but in any case, any proposed amendment still needs thirty-eight states to ratify it. There are easily twelve solid blue states in America and twelve solid red states. No one should fear that change would be too easy.
No doubt constitutional amendments are politically impossible–just as wresting a republic from the grip of a monarchy, or abolishing slavery or segregation, or electing Ronald Reagan or Barack Obama was “politically impossible.” But conventional minds are always wrong about pivot moments in a nation’s history. Obama promised this was such a moment. The past year may prove that he let it slip from his hand.
For this, democracy pivots. It will either spin to restore integrity or it will spin further out of control. Whether it will is no longer a choice. Our only choice is how.
Okay, suppose Lessig is right and it turns out that Congress finds the idea of promoting a constitutional amendment to rein in corporate spending just to-o-o plebian to contemplate. Suppose a Constitutional convention does turn out to be our only alternative. Bet on it that if Missouri voted in favor of one, it wouldn’t be for the purpose of overturning Citizens United. It would be for the purpose of “urging Congress to pass a balanced budget amendment to the United States Constitution.” Sen. Schmitt, R-Glendale, is already sponsoring SCR 36. Think he wouldn’t do backflips at a chance to make that one a reality? Or maybe Republican mouths would water over a chance to “Reaffirm Missouri’s sovereignty under the Tenth Amendment”. Sen. Jim Lembke, R-some other galaxy, has sponsored SCR 34 and already has seven co-sponsors: Jane Cunningham, District 7; Scott Rupp, District 2; Chuck Purgason, District 33; Rob Mayer, District 25; Gary Nodler, District 32; Eric Schmitt, District 15; and Bill Stouffer, District 21. See? That’s eight full out nuts–more than a third of their party’s number in the Senate–who would be on board without a backward glance. Throw in a few Democrats who’d like to see Citizens United overturned and some Republicans who’d be bound to straggle in and vote for it: voila, the Missouri Senate votes for a Constitutional convention. And the senate is the sane chamber in our legislature. It would be voting ditto for what the House had already passed.
A Constitutional convention would be one hair on fire event. Scary. But what choice do we have? We might as well go out with a bang. It’s better than a whimper.