With a recent USA Today poll showing that Congress has an approval rating of 11%, partisanship of politicians is at a new level of divisiveness, and gridlock halting action on pressing national matters, it is apparent that our federal legislature is not working. Many people claim to have the diagnosis for what may be causing this dysfunction, but one theory seems to be gaining traction: the influence of money in politics.
In its 2010 Citizens United v. FEC decision, the Supreme Court opened the door for corporations to spend money from their treasuries on independent political expenditures. By doing so, the Court endorsed, right or wrong, the concept that corporations have the same right to free speech, which can be exercised through spending money in campaigns. At the same time, Citizens United also opened the door, in practice to unlimited donations by individuals to “independent expenditure” campaign groups, such as SuperPACs.
Two other decisions also created leeway for more money to play a role in the political world: First, in 1976, the Supreme Court held in Buckley v. Valeo, that campaign spending is a form of speech protected by the First Amendment. Second, in 2013 the Court, in McCutcheon v. FEC invalidated aggregate limits on how much money an individual may donate in a two-year election cycle. Between these cases and their companion decisions, the Courts’ have, in the last few decades, repeatedly struck down legislatively developed limits on spending that were aimed at limiting corruption in politics.
Given the dysfunction that we’ve come to expect in Congress now, state legislators are taking notice and taking action. Article V of the U.S. Constitution details the process through which the Constitution may be amended. Many of our amendments have come about to remedy Supreme Court rulings that legislators, either in Congress or the states or in both, did not agree with: the 13th Amendment ended slavery, the 19th Amendment guaranteed the right to vote for women, and the 26th Amendment established voting rights for all citizens at the age of 18.
Under Article V, a Constitutional amendment may be sent to the states for ratification two ways; first, two-thirds of the Senate and House of Representatives must vote to pass the legislation on to the states. Or, by a national convention which would be assembled at the request of the legislatures of two-thirds of the states. Should an amendment be approved through either of these methods, the amendment then goes before the state legislatures’ for ratification. In order for the amendment to be ratified, it must receive passing votes from three-quarters of states.
The movement toward adopting a Constitutional Amendment to overturn Citizens United is well on its way to the needed numbers: 24 current U.S. Senators have introduced or co-sponsored amendments; 73 current U.S. Representatives have introduced or co-sponsored amendments; and 16 states have now adopted legislation indicating support for such a measure.
Will the Constitution be amended to limit the role of money in politics? As political parties and the public become more partisan it is increasingly unlikely, but maybe the movement will succeed in the decades to come.
Many questions remain: will those lawmakers who are on the payroll of some of the largest political donors be allowed to vote for such an amendment? Is the US now an oligarchy? Have representatives stopped listening to their constituents? Stay tuned to the NYSBA Blogs for a look a take on these questions soon.