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Last year’s Citizens United ruling—the controversial Supreme Court decision that shot down regulations restricting corporate donations in U.S. elections—is about to encounter its first significant challenge in mainstream politics.
On November 1, a handful of Democratic senators proposed a constitutional amendment that would effectively overturn the landmark case. The primary co-sponsors of the proposed amendment, Tom Udall (D‑N.M.) and Michael Bennet (D‑Colo.), argue that their plan would provide “badly needed stability” in campaign financing by reversing the decision and re-empowering the electoral voice of ordinary Americans. The legislation has been referred to the judiciary committee.
Known as S.J. Res. 29 (see the text here), the proposed amendment has attracted additional support from Sens. Tom Harkin (D‑Iowa), Dick Durbin (D‑Ill.), Chuck Schumer (D‑N.Y.), Sheldon Whitehouse (D‑R.I.) and Jeff Merkley (D‑Ore.). That means just seven out 50 senators are on record as supporting the amendment.
The Citizens United ruling, decided by a 5 – 4 split court in 2010, officially established the idea that corporations are (legally speaking) people, and therefore deserve the same rights to free speech that actual citizens enjoy—including in the realm of campaign finance. As such, the decision held that government regulation curbing corporate money in politics constitutes a breach of First Amendment rights.
The ruling also fortified politicians’ right to anonymity concerning the specifics of their fundraising, throwing into doubt more than ever whose interests are served by elected officials. (For more background on the ruling and details on campaigns to reverse its effects, see In These Times’ September cover story by Joel Bleifuss.)
The results of the ruling are already manifested in recent campaign spending patterns. As Reuters reports, the 2012 campaign cycle will set a record with a projected $8 billion in expendatures. This is a $1 billion increase from last year, and is especially remarkable as only one of the two major parties is currently undergoing a presidential primary.
As the Chicagoist reports, S.J. Res. 29 would not directly impose regulations on campaign financing. Rather, it would arm Congress with the constitutional power to enact reforms opposing the court’s ruling.
The amendment would not only enable Congress to shirk Citizens United, but would also effectively overturn the infamous Buckley v. Valeo case—the 1976 Supreme Court decision that legally defined money as a form of free speech, thus rendering unfettered campaign donations a means of expression protected by the First Amendment.
In a press statement announcing his support for the measure, Sen. Sheldon Whitehouse expressed dismay over the system set in place by Citizens United, which he says gives CEOs and the nation’s wealthiest “a giant corporate megaphone … to amplify their voice with treasury funds [from their] corporation[s] to the point where it drowns out the voices of regular Americans.”
Sen. Whitehouse heralded the proposed amendment as a viable cure, arguing that it would restore constitutional principles and return the electoral process back to what the founders “obviously intended.”
Another of the amendment’s supporters, Dick Durbin (D‑Ill.), stated that the results of Citizens United “jeopardize core principles of our democracy and threaten to give corporations and special interests an outsized influence on our elections.”
As participants of the Occupy movement coalesce around the “We Are the 99%” mantra, Citizens United has quickly become a symbolic example of how growing inequality in the U.S. is a structural result of power distribution in Washington. The growing awareness of the case has undoubtedly encouraged politicians to address the issue.
Though the proposed amendment is a significant step for activists opposed to the ruling, the move is still a long shot. The amendment would have to secure a three-fourths majority in both chambers of Congress. Then, at least three quarters of the 50 state legislatures would have to ratify it. Only 33 proposed amendments have passed both houses of Congress in the history of the United States. Of those proposals, only 27 were ratified by the requisite number of states.
Nonetheless, the issue has entered mainstream debate via the senators’ proposal. And perhaps—even though the amendment faces immense hurdles—it may inspire other efforts to resist the corporate hijacking of the U.S. electoral process.
The nonprofit group Move to Amend, which advocates amending the U.S. Constitution, is planning to mark the second anniversary of Citizens United by “occupying the [federal] courts” on January 20, 2012. Federal judges, beware.