A Great and Extraordinary Occasion: Amending the Constitution after Citizens United

James Madison famously wrote that amending the Constitution should always be possible, but reserved only “for certain great and extraordinary occasions.”

Yesterday Alliance for Justice hosted a provocative and engaging panel discussion about how to mitigate the impact of the 2010 Supreme Court decision in Citizens United v. FEC.  Moderated by Nation contributor Ilyse Hogue, “To Amend or Not To Amend: The Impact of Citizens United” featured Maryland State Sen. Jamie Raskin, Boston College Law School Professor Kent Greenfield and Roosevelt Institute Senior Fellow Mark Schmitt in an absorbing examination of the benefits and drawback of a campaign for a constitutional amendment, as well as the viability of alternative solutions to the unfettered flow of money in politics.

Raskin opened the discussion invoking Lincoln, saying our government has always been one of the people, by the people, and for the people, but Citizens United has effectively changed all of that—creating a government of, by, and for corporations.  He urged progressives not to fetishize or embrace a constitutional amendment as the one and only response to the flood of corporate money entering politics after the decision. On the other hand, he also warned against fetishizing the anti-amendment position. Opponents of an amendment solution, he argued, ignore some of the positive results that can come from the movement to pass a constitutional amendment—chief among them the function of such a movement as an organizing tool.

Raskin compared this moment with the campaign for the Equal Rights Amendment, which, despite never being passed, served as a catalyst for legislation that some would say has achieved the thrust of what the ERA set out to do, just by other more immediate means.  The value of an amendment campaign to mobilize interest in campaign finance reform is nothing to trivialize, he argued; it could be the backbone of a much needed and well-organized movement to get money out of politics. “It gives people a sense of empowerment that the Constitution belongs to us,” said Raskin.

Greenfield countered that, though organizing is key, using the anti-corporate personhood amendment as a tool to do so is not only a waste of the progressive community’s time, but potentially harmful. Although focusing primarily on the anti-corporate personhood amendments, Greenfield gave a convincing argument that a push to amend must not be just impassioned but also strategic.

“The idiocy of the Supreme Court shouldn’t drive us to find refuge in solutions that wouldn’t solve the underlying problem,” said Greenfield.

Anti-corporate personhood amendments would strip important rights from not only big money corporations, but also unions, churches, non-profits, and private universities. One possible outcome he mentioned is no defense for those groups from unreasonable government search and seizures. This risk, among others, is too big a risk to take, he argued.

Schmitt piggybacked on Greenfield’s position that an amendment may not be the best solution—even as an organizing tool, the primary benefit mentioned by many proponents.  How can you build a movement, he challenged, on a push for an amendment if you can’t even decide on which amendment to push? He said the campaigns for amendments “seed” cynicism, by their very nature, because it takes so long to pass an amendment. Plus, he noted, this would be an amendment retracting or restricting rights, not expanding rights. The 17 amendments enacted in the United States in the past 200-plus years have all bestowed rights — never taken them away. Instead, urged Schmitt, why not pursue more effective and achievable avenues for reform. Some he mentioned specifically were public financing laws and changing the corporate system itself to improve transparency and accountability.

In the end, the general consensus was that whether or not to amend is not the right question for this moment.  Moderator Ilyse Hogue suggested that addressing the harmful effects of Citizens United is not an “either, or” proposition, but a “both, and,” leaving room for mobilizing activists around plenty of solutions.

The real question is how to deal with the corrosive effect of money in politics and finally let the booming voices of the 99 percent get a chance to drown out the ones of the wealthiest 1 percent with the deepest pockets.  Is this the type of great and extraordinary occasion that Madison endorsed? Only time, and actions by the country’s 99 percent, will tell.