Death to Citizens United

Courtesy of Forbes.

That’s what Senator Tom Udall (D-NM) is going for. After surveying his options and concluding that no other alternative exists, Udall — who’s also integral to Senate filibuster reform efforts, which I’m covering in a magazine article to appear within the next month — is pushing for a constitutional amendment:

The amendment would give Congress the constitutional power to regulate the raising and spending of money in national elections, and it would give the states the same power to regulate spending in their elections. The amendment strikes at the fundamental heresy that lies at the heart of both Citizens United and Buckley v. Valeo, the 40-year-old case that made CU inevitable, given the correct composition of a future Supreme Court: namely, that money is speech. To this, of course, was added the equally preposterous notion that corporations are people and that, therefore, they have the same free speech rights as you, me, and the guy on the next bar stool. (How preposterous? Google Santa Clara County vs. Southern Pacific Railroad some time and get a good look at how corporate personhood got birthed on the wrong side of the constitutional blanket.) Pass the amendment, and all of the entangled absurdity of Citizens United goes away. One doomsday machine takes out the other.

As a law student, Udall watched the Buckley case work its way through the system all the way to fruition. He was already a local district attorney in the 1980s when a constitutional amendment was proposed to overturn Buckley. (Udall’s uncle, the late Congressman Mo Udall of Arizona, was one of the early supporters of that amendment and took campaign-finance reform as one of his signature issues when he ran for president in 1976.) He saw clearly where the country was headed once that decision was handed down. He heard the floodgates beginning to creak open.

“Back then, Mo and Dave Obey (the former Wisconsin congressman) believed that, if you could investigate, and find that campaign contributions injected corruption, or the appearance of corruption, into the system, then you could regulate it.” Unfortunately, in its intricate tricks and traps, to borrow a phrase from Senator-elect Warren, Citizens United took care of that, too, with weathervane Anthony Kennedy famously opining within his crucial concurrence to the CU-based decision that struck down the Montana law that corporate independent campaign expenditures “do not give rise to corruption or the appearance of corruption.” And thus are born Super Pacs and phony, covertly-financed 501(c) “welfare” organizations out of which come roaring a thousands attack ads.

“What they’ve done, essentially, is legalize money-laundering,” Udall says. “You can shut down the 501(c) and then sluice the money into the campaign, and the secrecy around the donors is maintained. Secrecy has no place in a democracy and particularly not in the electoral process.

“Once you say that money is speech,then you get what we have now — a Supreme Court that’s getting bolder and bolder in defending its decision. That’s what you saw when the Montana law was struck down. They passed that law because they saw what unlimited and anonymous corporate money could do to democracy. Right now, there is no possible legal remedy to this decision on a national level. We have to go with a constitutional amendment because we have to take the Supreme Court head-on.”

This is still an uphill battle, however: so far only 26 senators support the amendment. So…41 to go, plus the House?

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