In the year 2014, the fourth year after the Citizens United decision aroused popular opposition, plutocracy again significantly tightened its grip over the elections and political institutions of the United States. At the same time, the proposal most commonly offered to defend the country from this ongoing loss of its democracy suffered decisive setbacks.
The systemic corruption of U.S. politics and its attendant overthrow by plutocracy originates from the Supreme Court’s legalization of money in politics in Buckley v Valeo (1976). A constitutional amendment to overturn Buckley was proposed in the U.S. Senate as early as 1983, and was re-introduced many times thereafter. In the five years since Citizens United, advocacy groups aligned with the Democratic Party have sought to renew this approach.
Just as it has done repeatedly from the beginning of these efforts, the Senate in 2014 once again failed to deliver the 67 votes needed to propose such an amendment to the Constitution.
Senator Tom Udall’s Amendment Charade
It surprised no one that Senator Tom Udall’s “Restore Democracy” resolution based on the earlier amendments was defeated. This time it failed in a straight party line vote taken on a symbolic date for false flags, September 11, 2014. One Democrat, New York Sen. Gillibrand, abstained.
If the current march to plutocracy is to be even slowed anytime soon, this constitutional amendment idea should be allowed to rest in peace for the foreseeable future, in favor of other strategies. It is difficult to find any intellectual support for the amendment approach, whether from Udall or any other source, that explores any deeper than a shallow soundbite. It is not a remotely plausible means to overturn the Supreme Court decisions that have cumulatively created the now all but absolute domination of money over politics. This influence has proceeded apace since Citizens United as rising public concern has been misguided and vitiated in pursuit of the failed amendment approach.
There may be a few cultists who will call names and make historically uninformed arguments for continued pursuit of a constitutional amendment, or as they erroneously, if not synecdochically, phrase it: “overturning Citizens United.” But, after five years of strategic failure it is time to go deeper than that in search of effective strategy to reintroduce democracy to the United States. First it is important to take stock of of the real, known, weaknesses of the amendment approach to reform. To fill the strategic vacuum, this article enumerates the reasons why anyone interested in democracy should reject amending the Constitution as a political priority, while the article also points to a preferable alternative that has worked in the America’s past.
Even if Sen. Udall’s proposed amendment had somehow defied political gravity by attracting 67 Senators it would have had to then pass the Republican House by another supermajority 2/3 vote. It would be delusional to think that might happen in the world of systemically corrupt politics as we know it. No one did. But even assuming that the laws of political gravity were suspended in both the House and the Senate, a Congressionally approved proposal would then have required ratification by 38 (¾ of the) states. Just 3% of the population in 13 of the least populous states, effectively propagandized by some Koch-funded organization like ALEC, or Americans for Plutocracy, would have easily prevented its ratification, that is, if it were thought by plutocrats to be worth the expense of buying opposition to it. That proposition is itself cast in considerable doubt by the 20 reasons listed below why advocacy of an amendment is not only futile, and diversionary, but could and does do more harm than good.
It suits plutocrats like the Kochs to allow this effort to continue diverting political energies in quixotic pursuit of resolutions from state and local governments which are no more relevant than opinion polls are to the formal process of obtaining an amendment. For state legislatures to exercise their constitutional function of ratifying an amendment there must first be an amendment proposed by Congress, or by a Convention, to be ratified. Whatever a state legislature might do before that time is totally irrelevant and non-binding on any future state legislature. These activities promoted by professional activists are an irrelevant and diversionary waste of time and political energy that could easily have been promoted by the Kochs. Indeed, the likely next step for amenders after they are inevitably frustrated by the futility of their defective strategy, will be to buy into the dangerous Article V Constitutional Convention to get around Congress. This is a strategy that has been promoted by ALEC (2011) (the buyer of state legislatures founded by movement conservatives like Paul Weyrich, and funded by the Koch brothers), and a variety of right-wing activists, authors and thinkers like Adam Freedman, The Naked Constitution: What the Founders Said and Why It Still Matters (2012), Mark R. Levin, The Liberty Amendments: Restoring the American Republic (2013), original Tea-Partier Mark Meckler, and Glenn Beck.
Other Uses for Hypocritical Votes
There were 54 Democratic and Independent votes cast for Udall’s constitutional amendment proposal. But most of those votes were only indulged by their plutocratic owners because of the absolute certainty that no effective amendment could pass Congress, not last year, nor in the the current 114th Congress. The 114th has nine fewer Democratic votes in the Senate to support even such a faux reform.
Never having come close to 67 Senate votes in the recent past, it is even less likely that such an amendment could succeed in any increasingly corrupt future Congress. One needs to ask, precisely what is going to cause such a change as to turn 2/3 of Congress against practicing the political corruption in which they have become the rich world‘s leading practitioners? The pretense of Democratic support for an amendment was an easy gimme by the professional activists who themselves promote the soundbite-sized idea because it is easy to market. They have persuaded their uninformed followers of its validity as a strategy on the basis of no greater evidence than the bare soundbite and meager misinformation asserting that the Constitution is to blame for political corruption.
The pretense that the “one option,” the only solution to the problem of money in politics, is a constitutional amendment – as its sponsor Sen. Tom Udall has claimed — absolves Democrats from taking responsibility for supporting far more effective and immediate legislative solutions that are available under the Constitution. To be sure, those solutions would require authenticity and backbone from those same 54 Senators. The amendment soundbite “solution” enables Democrats, like Tom Udall himself, to assume that now-familiar Democratic pose – shoulders in a shrug, arms extended down and out, facial expression affecting hapless regret, to communicate “we can’t do anything because of those Republicans.” This posture essentially substitutes for any meaningful or principled action on virtually any policy dictated by Wall Street, while it enables Democrats to solicit votes for no better reason than that they are not Republicans.
It suits the Democrats’ goals, as handmaidens to the Republicans’ service of plutocracy, that advocating a futile constitutional amendment actually makes any real reform less likely. Such advocacy persuades people of the lie that there really is no other, no better, no more likely, solution to plutocracy, when in fact all three of these propositions can be easily proven untrue. Stripping the Supreme Court’s power over elections pursuant to the Constitution’s Exceptions Clause (and its elections clauses, too) meets all three criteria. This power could be used if voters organized in sufficient numbers to force a plausible majority, not an implausible supermajority, of a corrupt Congress to either do those voters’ will, or lose their jobs. Record setting low turnouts of voters, especially in midterm primary elections and caucuses, enables a very small portion of the electorate to assert such swing voting influence over incumbents of both parties. They would only need to force Congress to withstand the self-interested ideology propagated by the legal profession that Congress should never use its express Article III constitutional power over the jurisdiction of the judiciary for such an important reason as reinstating a constitutional government where the People, not five Supreme Court justices, are sovereign. Judicial supremacist lawyers and professors worry that Congress might thereby risk restoring democracy to the United States.
Placing the unrestrained autonomy of a plutocratic Supreme Court above democracy, as lawyers and especially law professors routinely do, has the same illegitimate cart-before-the-horse quality as the Buckley v Valeo “money is speech” concept. Buckley put a bizarre notion about “free speech” above democratic election integrity, when the efficacy of elections in conforming public policy to public opinion provides the very reason that speech is free as a matter of constitutional principle in the first place, as distinguished from its general desirability for liberal social practice. Similarly, the function of Courts in a democracy is to enforce the rule of law made by democratic processes, not to make up laws that preclude those democratic processes, as the Buckley decision and its progeny has done.
Prior to the 2014 elections the corrupt and feckless Democratic Party needed some pretense that they had a solution for “Citizens United.” While they were still a majority, the Senate Democrats needed to deceive potential voters that they were doing something important, everything they could possibly do, about the issue of money in politics, while in reality they were avoiding any action that might offend their donors by being actually effective. Polls show that systemic corruption is an issue of growing importance to voters. Udall himself worried: “Poll after poll shows that our constituents – across the political spectrum – want this amendment.” That was not quite true. Voters are increasingly aware that they are dealt out of the politics that are purchased from the winnings of subsidized and legalized casino capitalism, causing a widening legal, political and economic divide in the country. See Matt Taibbi, The Divide: American Injustice in the Age of the Wealth Gap (2014). Yes, polls regularly show voters see the connection to a government they see as corrupt, up 20% just since the beginning of the Roberts Court. The problem is that the People have been misguided as to how to solve that problem by the likes of Tom Udall.
Udall’s amendment gambit did not do the Democrats much good in 2014, not even for his cousin Mark who lost his Senate seat. Not enough people still find credible what Glen Greenwald has called the “’fake reform’ faction” of the Democratic Party. That faction routinely promotes, on most issues, anemic initiatives “that would provide only the appearance of reform, while in fact retaining or even increasing the … powers” of – you fill in the blank – the plutocrats who pay them, or Greenwald’s particular subsidiary target: the NSA element of the police state that protects plutocratic rule against any potential outbreak of democracy in America. No Place to Hide (2014) 131.
The hypocritical Democrats’ who supported a constitutional amendment against money in politics are full members of Greenwald’s “’fake reform faction.” They conclusively exposed their particular pretense to be a fraud after bending over for Wall Street at the end of 2014 to drastically increase money in politics. Just three months after their nearly unanimous constitutional amendment vote, a majority of those same Democrats (and Independents) voted on December 13, 2014 to enact a dramatic increase in campaign contributions under the “CRomnibus” law, (‘Consolidated and Further Continuing Appropriations Act, 2015’) Pub.L. 113-235. With an enormous amount riding on every single Democratic vote, the close vote on this law cut clean through the Senate Democrats’ amendment pretense to expose very clearly what Democrats like Tom Udall actually stand for.
The Democratic CRomnibus
First, the House Republicans completely gutted an unrelated law from the Senate, so they could stuff it with the year’s Christmas presents for Wall Street. The presents had been wrapped primarily by Senator Barbara Mikulski on behalf of the Senate Democratic leadership, in private conference, without any hearings. The House Republicans called this enormous secret law an “amendment” in order to avoid the usual legislative process required of any law, let alone the most important and essential law of the session. This appropriations bill that occupied the hollowed-out H.R. 83 bill was required for funding nearly all of the government and military, except $30 billion for Homeland Security. In what the Washington Post described as a “caricature of the deliberative process by which Congress is supposed to approve appropriations,” the Democratic-majority Senate then pretended that it just had no choice but to immediately enact, without any deliberation, whatever gifts to Wall Street the Republican House had tacked on to the appropriations bill in their surprise move two days earlier. As if the 113th Congress was just too busy this session to take the time to do the nation’s business according to the normal rules – having done the least work of any modern Congress, other than the preceding status-quo session of the 112th Congress.
The new appropriations bill, along with its appended gifts for plutocrats, had already been secretly pre-approved by the Democrats’ Senate leadership and Obama. One commenter described the episode as a “beautiful illustration … of finance capitalism run amuck,” the result of which “fiasco is the exposure of Obama as a fake.” Make that, “exposure of a majority of the Senate Democrats as a fake,” along with Obama as the leading fake.
As H.R. 83 sailed through the House, Minority Leader Nancy Pelosi was quoted saying: “The public awareness among our base is very high … on this money. And all of the idealism that people have who support us — both as small donors and as major supporters — has always been about reducing the role of money in politics.” If Pelosi is right, there should be heard soon that proverbial giant sucking sound of such people leaving her party, to find something to do with their vote, not to mention their money, other than wasting it on Democrats. The Senate Democrats handled H.R. 83 as if they were the Republican’s second-string squad. Democrats proved by their handling of CRomnibus that they have no useful role to play in politics on the issue of political corruption, if on any important issue, that is not already served by Republicans.
Democratic Senators like Tom Udall had struck that fake hapless-Democrat pose as the promoter of a false-flag constitutional amendment designed to appease and trick that Democratic Party base mentioned by leader Pelosi. He and 30 other similar hypocrites then turned their backs on the cause of getting money out politics by refusing to cast the single additional vote necessary for a Senate filibuster of the plutocrat-enabling provisions in H.R. 83. The nominally Democratic President mired deep in the same Wall Street money, while also mobbed-up with its numerous emissaries who occupy all his key financial policy posts, not only refused to threaten a veto of the bill – he put on an unusually effective lobbying effort to get it passed.
A simple divided-government “Politics 101” combination of a sustainable veto threat from Obama, backed by a Senate filibuster threat, would easily have forced the Republicans to abandon the plutocratic “moral hazard” and “quid pro quo” provisions which House minority leader Pelosi had expressly identified and personally opposed (H9279-9280). In her words, the two most offensive provisions both “give donors the opportunity to spend endless money, undermining the confidence the American people have in our political system, at the same time … as we say to Wall Street, you can engage in risky activity with your derivatives and the FDIC will ensure your action.” She was “enormously disappointed that the White House feels that the only way they can get a bill is to go along with …. privatizing the gain and nationalizing the risk” to benefit Wall Street while also signing on “to practically unlimited contributions to political campaigns just at a time when we are trying for reform to reduce the role of … money and increase the voice of the American people.”
Had Obama and the Senate Democrats used their veto and filibuster tools the Republicans could not have blocked the appropriations part of the bill without alienating their own rebellious Tea Party constituency. Republicans would have been seen as forcing a government shut-down, by refusing to send the president a clean spending bill, for the sole purpose of supporting yet another bailout of the very kind that the Republicans’ Tea-Party wing hates, indeed of the kind that in 2009 generated all their astroturf ruckus in the first place. Nor are Tea Party voters great fans of even more concentrated control of government by Wall Street billionaires.
The Senate Democrats’ cover story, that they could get no better deal in the 114th Congress, and so their H.R. 83 capitulation was “a necessary compromise to forestall more aggressive efforts by Republicans next year,” was clearly belied when the same Politics 101 strategy that Democrats refused to apply to Wall Street largesse when the 113th Senate Democrats held a majority was then dusted off in the new 114th Congress where Democrats are a minority. Because the Democratic minority still has enough votes to sustain a veto in the 114th Congress, they do not pretend to lack the tools to block legislation in which Wall Street is not interested. These tools were therefore suddenly available for purposes of defeating the immigration provisions attached to the Homeland Security budget bill, H.R. 240. But, for now, that applies only to immigration, apparently. Since Wall Street has no consistent position on the immigration issue, the duopoly has permission to play-act at deadlock on that issue in order to keep alive the Kabuki partisan-polarization myth that sustains the two party image essential for the success of the plutocrat duopoly.
Democrats, including their leading proponent for a money out of politics amendment, Tom Udall himself, voted YES to much more money in politics from Wall Street plutocrats rather than YES to a Senate filibuster of H.R. 83 to reject considerably more money I politics. This was a very simple and defining choice for Obama and the Senate Democrats. They could easily have stopped the bill in the 113th Senate and had more than enough votes in the 114th Congress to filibuster any such bill, or to sustain a veto if it came to that. The immigration fracas and other permitted partisan dramas throughout the session will prove that. Nearly all the Democrats who were exiting the Senate voted YES on H.R. 83, leaving behind in the 114th Congress most of the Democrats who voted NO to an increase in campaign corruption.
The Democratic leadership could, of course, have prevented the CRomnibus bill from ever coming up for a vote in the 113th until the offensive provisions were removed. Except that leader Reid put those provisions in the bill in the first place. Democrats own the CRomnibus, though little protest against Democrats will be heard from non-profit activist groups that contribute to the pretense that Democrats are the solution rather than the problem.
The majority of 31 from the total of 53 Democrats formed a majority of the Senate’s 56 YES votes on H.R 83. These 31 Democrats included all of those who were defeated or retiring in 2014, except Senators Harkin and Levin who apparently did not have campaign debts that needed paying off by Wall Street and could vote NO. Twenty-one Democrats and the Independent Bernie Sanders voted against CRomnibus, while Sen. Diane Feinstein abstained. Underlining the spread of Court-sponsored corruption to all three branches of government, the law had the active support of President Obama who “undercut [House] progressives by coming out in support of the deal … early in the day” of the House vote. Defying his benign exculpatory icover as the well-meaning but ineffectual supporter of progressive reform that he increasingly pretends to as the possibilities for such reform decline, Obama quite effectively performed everything necessary to get Wall Street’s Christmas gits delivered on time as he does quite effectively with most Wall Street policies.
Democrats like Obama, Reid and Tom Udall clearly revealed the true role they play in their extended run in the corrupt Kabuki drama where both parties perform duties assigned by Wall Street producers. In this theater, Democrats pretend not to deliberately allow the Republicans to avoid punishment from their own base on populist issues like Wall Street bailouts and political corruption. But Democrats are now clearly exposed as carrying the dirty Wall Street water for Republicans when the Republicans’ own populist wing would have prevented the Republicans from carrying the for themselves the CRomnibus bailout water, polluted with even more political corruption. The enactment of H.R. 83 against the overwhelming opposition from voters of all political flavors, other than the flavor of money, demonstrated the duopoly firing both its guns with impunity. As with every such issue involving money and power, both guns are aimed at the duopoly parties’ respective voting constituents, with ammunition supplied by their corrupting cash constituents.
Making History by Quid Pro Quo
The “CRomnibus” law, Division N, Sec. 101, increased the size of the legal pay-off to the duopoly parties by plutocrats like Wall Street’s biggest gamblers. These derivatives speculators work almost entirely for the four largest banks. They were represented by their Regent in Washington, Jamie Dimon of JPMorgan Chase, the chief lobbyist for Wall Street’s Capitol gift registry. The law Dimon secured includes “the most corrupting campaign finance provision ever enacted.” It may have been the first law since at least before the Progressive Era over 100 years ago that was clearly designed by Congress to do nothing other than significantly increase the gross amount of political corruption. (Since 1976, the Supreme Court has authorized such increases, which, before that date, had been largely in decline at least as far back as the Progressive Era, if not in a more general way since the founding of the republic). This shows how deeply and systemically marinated in corrupt contributions, and therefore how historically immune from the democratic consequences of public opinion, all but a very few of US politicians have become under the influence of the Supreme Court’s plutocratic “money is speech” jurisprudence.
This end-of-term travesty of democracy was characterized by Jim Hightower as “a phenomenal show of acrobatic lawmaking. In one big, bipartisan spending bill, our legislative gymnasts pulled off a breathtaking, flat-footed backflip for Wall Street. They then set a dizzying new height record for the amount of money deep-pocketed donors can give to the two major political parties. … You and I didn’t see it, because it happened in secret.” Acording to Hightower, he law vastly increased the “donations that individuals can give to national party committees. In a gravity-defying stunt, lawmakers flung the limit on these donations to a record-setting 15 times higher.”
In this most fateful vote of the do-nothing Democratic-run Senate of the 113th Congress, Wall Street Democrats joined Wall Street Republicans to gift their benefectors with the enormous moral hazard of underwriting federal insurance for Wall Street gamblers who bet their TBTF banks at the capitalist casino, and lose. As a likely predecessor step toward a future Wall Street theft of depositor savings by bail-ins, Congress has advanced the ongoing project of what Matt Taibbi (2014), 70, describes as “enabling the transformation of the world’s biggest banks into bona fide organized crime operations.” Repeal of this “swaps push-out rule” is the most blatant of Gilded Age-scale recklessness. The likes of the marginalized Clinton-era whistleblower against TBTF banking, Brooksley Born, and the Bush-era depositor’s advocate, Sheila Bair, are nowhere to be found in the Obama administration to protect middle class victims from — or even to just blow the whistle on – these Wall Street predators. So much for the prevaricator in chief‘s “middle class economics.”
In return for re-opening the same crime-spree casino that wrecked the economy in 2008, while considerably raising the table stakes, party leaders gave themselves a bonus increase of the house rake in the form of contributions to their party slush funds. The elected party leadership had two reasons: first, the new money will help them stay in the leadership and impose just the kind of corrupt disipline that produced the majority Democratic Senate vote for H.R. 83 against what they know to be the overwelming wishes of voters; second, it helps them compete with totally unrestrained independent political investors for control of the party. The individual candidates had received their own big annual bonus increase from the Supreme Court in McCutcheon v. F.E.C. (2014), while independent electioneers had been earlier unleashed by the progeny of Citizens United (2010). So the party leadership, headed by Sen. Reid and Rep. Boehner, negotiated to catch up. Their own big CRomnibus increase would help them maintain their relative leverage over their parties and members.
The House Appropriations Committee’s ranking Democrat, Representative Nita M. Lowey, complained that the Senate Democrats’ leader shares the blame: “The Reid-Boehner provision to increase by tenfold the limits on contributions to political parties is excessive and also does not belong on this bill.” According to the New York Times, Republican Representative Tom Cole added that “Democrats in the Senate consented to [the campaign finance change], and, I suspect, participated in it.”
After the bill passed the House, Democratic congressman Steve Israel summed up its dual quid pro quo purpose: “’This bill is a one-two punch at middle-class voters. It weakens financial regulation on big banks and rewards Congress for doing so by increasing campaign donation limits of big donors. This is exactly why middle-class voters have a contempt of Congress.’” Rep. Chris Van Hollen, ranking Democrat on the House Budget Committee, concisely called it “a giveaway to the special interests and then providing them the ability to more easily finance the process.” “Finance the process,” euphemistically means “pay larger legalized bribes in exchange” for insuring Wall Street’s gambling losses. Appropriations Committee member Rep. Rosa DeLauro objected to the bill’s use of “Public funds … to prop up casino banking” while it “overturns some of the last remaining campaign finance laws, as if they were not generous enough.”
In a reprise of this same moral hazard issue in the 114th Congress, H.R. 37 includes among other gifts for Wall Street an extension until 2019 of Dodd-Frank’s “Conformance period for certain collateralized loan obligations.” This is “completely reckless legislation” exempting Wall Street from the key Dodd-Frank reform. After seven years delay, this provision delays even further implementation of the “Volcker rule” that similarly “stops government-supported banks from gambling with bank depositors’ money,” but at a different table than that which the CRomnibus-repealed “swaps push-out rule” had temporarily shut down. Waters H345. Republicans returned the favor they received from Democrats in the 113th by scheduling In the 114th a suspension of the rules for H.R. 37. That required a supermajority vote that the Democrats could first win and publicize in “a transparent ploy to appease their far-left wing.” A week later they held the real vote, in which a simple majority passed the casino provision with Democratic support. Watch this space to see which Ds will help the Rs avoid a filibuster of H.R.37 in the Senate.
Why was there no Senate filibuster of H.R. 83 when the Ds still had a majority in the 113th Congress? Kabuki. There were 40 Senators permitted by their plutocrat sponsors to vote against the bill. This number falls exactly one short of the votes needed to avoid cloture of a filibuster. This finely tuned division of the vote maximized the politicians in both parties who could be issued a pass from the party leaderhship to appear to do what most voters want. Not to actually do what the voters want, of course. Defeat of a bill purely to profit and further empower plutocrats at the public’s expense would be doing what the voters want. The Kabuki Congress only requires the appearance of doing what the voters want, and then, for the most corruptedly putrid legislation, only on the part of a large minority.
The final Senated tally of 40 NO and 56 YES votes on the Cromnibus, for example, could only have been this carefully constructed by the collaboration of the two parties’ whips who had absolute certainty of the outcome. If there had been any uncertainty, which there would have been if Congress were not all bipartisan theater on such matters, the vote would not have been left as such a cliff-hanger. The allowed 40 NO votes were divided up between D’s and R’s, who had totally different reasons to vote against the CRomnibus. The NO voters’ posturing at the parties’ respective faux populist wings could be tolerated for Kabuki purposes. The Kabuki is designed to attract voters who think that that their belief in the losers of either party provides sufficient reason to continue supporting the two-party charade. But the play-acting, as always, would defer to the demand for timely delivery of Wall Street’s Christmas gifts from the 113th Congress. The skids for such bipartisan gifts come heavily larded with contributions. Four Senators were allowed to remain neutral by not voting, provided they agreed, presumably, to vote cloture in case, by any miscalculation, a filibuster did eventually threaten the bill and their vote was needed.
The Size of the Rake
McCutcheon v FEC‘s repeal of aggregate limits in April 2014 enabled the “CRomnibus” to increase an individual’s contributions over an election cycle to reach a total of about $4.2 million, according to the Washington Post. The Post reported that the bill’s drastic undercutting of the 2002 McCain-Feingold campaign finance limits would allow a donor who gave the maximum $32,400 this year to the Democratic or Republican National Committees to donate another $291,600 on top of that to the party’s additional arms – for a total of $324,000, ten times the current limit.
The League of Women’s Voters more comprehensively calculated that a “single individual is authorized under the bill to give … to the three committees of a national party … a total of $1,555,200 in a two-year election cycle. By this LWV calculation, the Democratic CRomnibus increase would expand the pre-McCutcheon limits in force at the beginning of 2014 by a factor of over a dozen times. An approximately 30 times increase was legislated by the Supreme Court in McCutcheon, under the Court’s hollow pretense that — hidden to all but the “Roberts 5” and their Nixonian predecessors — the framers planted somewhere in the First Amendment detailed instructions for mandating a 21st century plutocracy. Together these actions by the Supreme Court, Congress and Obama would now allow a total, per plutocrat, of over $5.1 million in political investments in each federal election cycle. Only about 100 donors currently give more than around one tenth of that amount, so there is now plenty of room for much tighter consolidation of plutocratic control over the former republic.
With this 42 times increase of aggregate contribution limits just since the beginning of 2014, all three corrupt branches and both parties can be seen competing to hand the country over to a narrowing hotel banquet room full of plutocrats. At current prices about 600 such paying guests can rent a Congress, which includes gatekeeping appointments to the Supreme Court as a party favor. The abject failure of any effective opposition to this ongoing descent into plutocracy, notwithstanding the overwhelming public disgust at the corruption in Congress, if nothing else, should send the constitutional amendment advocates back to their drawing boards.
The amenders purport to be a “movement” that prioritizes the reduction of the influence of money in politics. Will they now organize their movement to punish the seven Democratic Senators up for reelection in 2016 who voted to allow significantly more new political corruption than ever before? Will the movement keep a long memory until the next election of the especially bogus Sen. Tom Udall? Will they organize their “movement” power (if it consists of anything more than a “PR Front for Rich Democrats”) to make sure these Democratic renegades from their cause of getting money out of politics are defeated? This might get the attention of incumbents to start doing something more serious about getting money out of politics, rather than just continue their amendment charade, or even just propagate empty platitudes devoid of any pretense to strategy. The very fact that the Democrats supported Udall’s charade shows that they do worry about the potential power of voters who prioritize getting money out of politics, even if it only prompts them to pretend to be working on the problem. Their ruses depend the famous H.L Mencken odds that “No one … has ever lost money by underestimating the intelligence of the great masses of the plain people. Nor has anyone ever lost public office thereby.”
Those odds should be put to the test. The 2016 wall of shame names the following “plutificent” seven (along with Maplight‘s list of contributions they received from supporters of the CRomnibus law): Chuck Schumer (NY) $1,843,545; Michael F. Bennet (CO) $917,641; Harry Reid (NV) $788,800; Patty Murray (WA) $401,707; Brian Schatz (HI) $207,319; Barbara A. Mikulski (MD) $187,172; Patrick J. Leahy (VT) $86,275. Any one of these Democratic Senators could theoretically have stopped the most purely corrupt campaign finance law in modern history simply by shifting sides to join a filibuster against it. Instead, like Tom Udall ($311,475), they all voted YES to more corruption along with 23 other Democrats not up for reelection until 2018 and 2020.
Their YES-vote ring-leader Harry Reid, hoping to attract voters on this issue, had vocally urged support for Udall’s “constitutional amendment — to rally behind our democracy” because “the flood of special interest money into our American democracy is one of the greatest threats our system of government has ever faced.” Wall Street’s own liberally-compensated YES-voting Senate Satrap, Chuck Schumer, similarly feigned support for the amendment: “It’s time for Congress to act — to reassert its role and protect the right of all Americans, not just those with the fattest wallet, to participate in our political system and be heard.” But, like Obama who has also mouthed a few similar platitudes while taking record amounts of Wall Street money, both Reid and Schumer worked to pass a law that now allows a bigger than ever “flood of special interest money” from those “fattest wallets,” millions of which, according to Maplight, happened to go to Reid, Schumer, Udall, and even Udall’s defeated cousin, Sen. Mark Udall ($406,030), from the special interests who sought and received their YES votes on H.R. 83 at the same time the pretended to favor getting money of politics, by the unlikely means of an amendment to the Constitution.
Since these same hypocrites did vote for the futile and politically phoney constitutional amendment by which Tom Udall provided them all cover, will Democrats who voted YES to a lot more money in politics when given the chance be given a pass by the amenders? If so, then what is the true agenda of the amenders, if not opposing and defeating those who, when given the chance, vote for a lot more rather than less money in politics? Or are the amenders just bit players in the Democratic Party Kabuki act of pretending to oppose “one of the greatest threats our system of government has ever faced.”
The Drawing Boards
Every proposed constitutional amendment, like Udall’s amendment, would only restore to Congress the “power to regulate the raising and spending of money” in politics that the Supreme Court has usurped. Many of its naïve supporters, just like they do not understand that obtaining resolutions is irrelevant, do not understand that an amendment would not, of itself, do any such regulating at all. An amendment would necessarily depend entirely upon a detailed, large and complex implementing law to be effective. No such provisions can fit within the general and abstract literary form of a constitutional amendment. Without such a law the amendment would remain a useless, passive authorization for future legislation. It would be like the 15th Amendment that in 1870 expressed the noble sentiment of giving freedmen the vote, but did not have much real impact until the Voting Rights Act of 1965. As with the 15th Amendment, Congress could well choose to ignore the power an amendment would give it to control corruption, and instead choose to keep government on the ever more expensive auction block for purchase by ever fewer plutocrats, as a majority of Democrats chose to do by voting for H.R. 83.
It cannot now be denied that a majority of Democrats can be expected to do in any future Congress just what they did in 2014. As long as such Democrats remain in office with the help of voters who want money out of politics as their priority concern, an amendment would remain entirely useless to effect any actual change. This places amenders in the quandary of choosing between supporting their Democrats and the total irrelevance of their amendment strategy as long as they do rely on their Democrats who vote for more money in politics.
The constitutional amendment deception never was a plausible or useful strategy for change. The Court knows it; Congress knows it; and Obama knows it. So those with voters to think about all give casual lip service to an amendment; the judges who don’t keep propagating the supporting deception that the Constitution, not judges and politicians, designed the country to be systemically corrupt. Meanwhile all of them work together to make buying the government 42 times easier for their plutocratic sponsors than it was just a year ago.
The amendment strategy itself was based on ignorance of the problem and what it will take to solve it. It was designed to attack the corrupt enemy’s line of defense at its very strongest possible point using only the extremely weak forces comprised of those gullible enough to swallow an intellectually vacuous soundbite sold primarily by what John Stauber has called “the parasitic non-profit elite.” At the same time, it promotes, even to those who already know that an amendment is futile, the subtext idea that, nevertheless, nothing else is possible anyway. The full message they are being paid to propagate, in effect, is the false one that would please the Kochs, that nothing practically feasible can be done to restore democracy in America. The rule of the plutocrats is a permanent Catch 22.
The media and activist elites’ elevation of Citizens United as the poster child target of reform is yet another strategic error. If only one Supreme Court decision is to be overthrown, that would be Buckley v Valeo. Citizens United and all the other cases based on the Supreme Court’s “money is speech” invention in Buckley would automatically topple if the shell game rationale for Buckley’s plutocratic legal ”money=speech” alchemy were scrapped. But even that would not go far enough. The Supreme Court needs to be altogether removed from elections, as described below in point 14 of the 20 reasons to reject a constitutional amendment approach as any kind of authentic political strategy. Citizens United is only a portion of one element of the whole problem and, properly understood, is not even a very large portion at that.
First, Citizens United only legalized corporate independent expenditures after Justice Powell had long since implemented his strategy for plutocracy by leading the Supreme Court to legalize corporate “issue ads” in First Nat. Bank of Boston v. Bellotti (1978). In subsequent cases he was quick to develop additional scaffolding for the new doctrine allowing corporate political speech on political issues. E.g. Friedman V. Rogers, 440 U.S. 1 (1979); Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U.S. 530, 544 (1980). The Court eventually made those issue ads nearly indistinguishable from independent electioneering by authorizing, or at least clearly signaling the majority’s future legalization of, “sham issue ads.” See FEC v. Wisconsin Right to Life, Inc. (2007) (WRTL). Sham issue ads had been just as effective as independent electioneering, before being briefly prohibited by BCRA. Moreover, the Federal Election Commission broadly enabled corporate PACs in its 1975 SUN-PAC (AO 1975-23) decision. Corporations thus, for over three decades prior to Citizens United, had been empowered to influence elections through legal bribery, and did so.
Overturning the actual legal ruling in Citizens United, which formally obliterated any distinction between issue ads and independent expenditures, would hardly make any difference to plutocratic rule. That was why the Roberts 5 grabbed the chance to make more law than was required to decide the case actually brought to it by Citizens United’s lawyers. The Court thereby intentionally violated the most basic of the separation of powers rules in order to legislate, a power that the Roberts 5 has become quite comfortable in usurping.
What made Citizens United so offensive was the Roberts 5’s political use of the Court’s majority decision to give an improper “advisory opinion” signaling its broad assurance in dicta that five plutocratic justices would henceforth protect plutocracy in several ways. This blatant, unconstitutional legislation from the bench allowed election lawyers for plutocrats to confidently predict open season for bagging politicians without much fear. The law criminalizing their influence procuring activity would not be enforced, provided they could divert some of their electioneering funds into Supreme Court litigation.
Those promised future rulings were unnecessary to the decision of the narrow issue presented in Citizens United. That issue was almost purely technical after the Court had more or less ruled in 2007, somewhat deceptively, as always, by Chief Justice Roberts – but very clearly by the other members of his gang, that issue ads and independent electioneering cannot be constitutionally distinguished and so, in their view, both were equally legalized.
The promises to plutocrats made in Citizens United were all realized subsequently in (1) Speechnow.org v. FEC (D.C. Cir. 2010) (en banc) (“the government has no anti-corruption interest in limiting independent expenditures” because — surely surprising to anyone actually living on Earth — “as a matter of law … independent expenditures do not corrupt”); (2) Arizona Free Enterprise Club (2011) (Roberts) (any law even partly motivated to equalize access to political speech is unconstitutional for that reason, notwithstanding the equal protection clause of the 14th Amendment and the Declaration of Independence both enshrining political equality as a keystone of democracy); (3) American Tradition Partnership, Inc. v. Bullock (2012) (per curiam) (even a state Supreme Court finding that independent corporate expenditures, contrary to Citizens United’s dicta, as a matter of fact, do corrupt –and therefore must be prohibited to save Montana’s democratic form of government – is a fact that will be summarily ignored as inconsistent with the U.S. Supreme Court’s own legislative decree changing that fact into palpable fiction); and (4) McCutcheon v. Federal Election Commission (2014) (Roberts)(legislative power to prevent political corruption is limited solely to the prevention of the express deal, “quid pro quo,” type of bribery and cannot extend to the “undue influence” wink-and-nod variety of indirect deal-making that is procured by contributions of large sums of money to candidates and parties
Second, for-profit corporate political investments constitute only a small fraction of the whole problem of plutocracy. Abolishing all corporate political investments, or – to satisfy the true believers – even all rights of corporations, would still present only a road bump for continued rule by plutocrats. So long as their private fortunes, nonprofits, and other controlled entities can be used to buy policies that enrich their businesses from which they in turn extract the incomes that finance political corruption, then their political investments do not need to be routed directly through their corporations to bribe politicians. Many, if not most, plutocrats prefer it that way. That is basically how corporate PACs and individual plutocrats already worked, which is more recently being replaced by SuperPACs and “charitable” non-profits that serve the same purposes more anonymously
As Dean Baker (2011) 149, 153, describes this system, plutocrats “have gained control of the mechanisms that distribute income …. The enormous growth of inequality over the last three decades … came about through conscious design” of those mechanisms. Feeding the beast to keep enacting and maintaining those policy mechanisms for redistributing the wealth to plutocrats consumes only a tiny fraction of the unequal income derived by plutocrats from their purchased policies. Selectively addressing just one feeding mechanism, the narrow Citizens United issue of independent corporate expenditures, would accomplish virtually nothing. To control the complex hydraulics of the flow of money into politics, where money in search of profit will find its way through any leak, it is totally useless to focus on only one relatively small pipeline like that portion of independent expenditures from corporate treasuries legalized in Citizens United, that were not already legalized for issue ads from Bellotti to WRTL. Every last potential flow of money from profit-seeking special interests to and for politicians must be criminalized and as rigorously punished as any other form of political terrorism designed to subvert democracy. Until there is enough political power to adopt an amendment uncompromisingly to do that total eradication, on pain of punishment for treason, by defining plutocrats as enemies of the state, it is not worth pursuing an amendment.
Why do so many of the “parasitic non-profit elite” and their politicians make it their strategic goal to overturn just that one case of Citizens United? Stuck in their narrow corporate-phobic framework, or particular non-profit silo, some amendment advocates have come up with the especially lame idea that what is most needed is an amendment to abolish “corporate personhood.” This outdated legal doctrine had nothing to do with the First Amendment rationale on which the Supreme Court based its Citizens United decision. But In the world of professional activism the parasites feed off the idea they own, so, in order to employ a soundbite they could sell, they pretend that is what the Supreme Court said anyway. The soundbite did sell. But the 19th century “corporate personhood” doctrine – which relates solely to the Fifth and Fourteenth Amendments, and not the First Amendment – lost its vitality after March 29, 1937 when FDR’s brilliantly successful political strategy to force the Supreme Court to stop violating the separation of powers suddenly ended the Supreme Court’s conduct of the country’s economic policy by use of such doctrines.
Though the Supreme Court had reverted to routine violation of the separation of powers by 1976, it did not revive those pre-1937, Lochner-era doctrines. The “corporate personhood” doctrine, or more importantly the vague “liberty of contract,” substantive “due process,” and 10th Amendment “states rights” doctrines which gave it importance as a means to overturn economic legislation the Court did not like, such as most infamously in the A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) have all remained on the legal scrapheap. It would have been too difficult a stretch for the legal profession to recover from the dust-bin of legal history doctrine of the kind used in Lochner and Schechter after thoroughly berating these cases in law school classrooms for two generations. Too many law school students have been taught both to discredit the constitutionally illegitimate, and politically buried doctrines underlying such cases. They were instead taught to elevate the Court’s new paramount role in protecting civil liberties. That was where Lewis Powell found his key concept for restoring plutocracy.
In Buckley v Valeo (1976) and its progeny, the Supreme Court implemented Justice Powell’s agenda which took an entirely different tack for steering the country back toward the plutocracy that had ruled country for more than a half century prior to the New Deal. The Court did not revive the old doctrines that gave “corporate personhood” importance as a means to conduct the nation’s economic policy. That was unnecessary. Instead, for the first time, the Court started conducting the country’s election policy. For that purpose the “corporate personhood” doctrine was of no use to it. All the Court needed to do was invent ad hoc, bizarre, new First Amendment doctrines that would only apply to elections.
In the Gilded Age, prior to the Progressive Era, there were few if any laws against buying elections by making contributions to candidates, rather than to voters. Until the Progressive Era the news media were partisan, and there was no mass broadcast media. Winning parties would use government funds to subsidize their partisan newspapers and required government employees to tithe for the parties. After Civil Service reform, Gilded Age plutocrats picked up the slack, until Progressive Era reforms imposed restrictions. By overturning those Progressive Era, and subsequent, reforms that restricted money in politics, the Supreme Court could allow plutocrats to once again corrupt elections, just like they had done systemically in the first Gilded Age.
Having corrupted elections, the Court could then leave the details of making economic policy for plutocrats to those neoliberal politicians that the plutocrats could freely install by use of the Supreme Court’s corrupted election laws. Corrupting just this one area, that of election law, the Court plutocrats did not have to perform such broad services of detailed rewriting of the statute books as did the much-reviled Lochner-era Court from the earliest Progressive Era until 1937. Indeed, undermining election laws would enable the Court to fly the false flag of “liberty,” promoting “the freedom of speech” beloved by all Americans and by the post-New Deal generations of law students alike.
The single new magical doctrine, “money is speech,” that allowed the Court to control elections could substitute for all the old discredited doctrines that enabled the earlier supremacist Court to control the economy. Madison’s dictum, as quoted by Charles Sumner, would be fulfilled: “The right of suffrage is certainly one of the fundamental articles of republican government…. A gradual abridgement of this right has been the mode in which aristocracies have been built on the ruins of popular forms.” It was done by violating Madison‘s rule that the power of the Supreme Court to interpret the Constitution should be “limited to cases of a Judiciary nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.” Madison warned that “the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution.” He wrote in The Federalist, No. 49: “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” It is this power that the Roberts 5 have appropriated. This violation of the separation of powers Madison properly insisted “may justly be pronounced the very definition of tyranny.” (The Federalist, No. 47).
The remedy for plutocracy today, just as it was in the day of Jefferson and Lincoln, and in the New Deal, is to stop the Supreme Court from violating the separation of powers again. George Washington’s Farewell Address, the first manual of instructions, from the essential founder, on how to operate the new democracy, warned the branches of government “to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create … a real despotism.” Jefferson applied Washington’s warning to the specific issue of judicial supremacy: “the constitution… meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch.” The Constitution clearly puts the conduct of elections within the sphere of the legislature.
The Roberts 5 majority needs to be forced to end the “real despotism” of plutocracy that it has caused by flagrantly violating this fundamental precept of the Constitution, in just the manner that Washington, Madison and Jefferson warned against. In the current political environment of systemic corruption only the voters can make them obey the Constitution by the People themselves deciding whether the Court has any business under the Constitution in supervising elections. Then, just as political pressure forced the New Deal Court to stop conducting the country’s economic policy, the CJ Roberts-led second Gilded Age Court would be required to stop their own “spirit of encroachment” in making the country’s election policy.
The Court has been successfully “confine[d] … within [its] respective constitutional sphere” before by Jefferson, by Lincoln and by FDR; it can be tamed again, with a strategy different than but equally as thoughtful as theirs. Jefferson used the realistic threat of impeachment of politicized justices, which helped restrain the Court from usurping the powers of Congress until Dred Scott (1857); Lincoln’s political campaigns made a thorough legal deconstruction of the judicial supremacy and lies of Dred Scott, while his presidency delegitimized by derision and disregard the slave-power Court that told those lies; FDR used public delegitimation of judicial supremacy by “fire-side chat,” and also by the threat of court-curbing legislation. All three presidents succeeded in preventing the Court from continuing the “real despotism” that the current Court has caused. Obama has proven that although a candidate might pose in his campaign as a Jefferson, Lincoln or FDR, systemically corrupt politics of our time will not likely produce more than an impersonation of the great presidents who overcame the past despotism of judicial supremacy. The People, not a president, will have to fill the role that these greatest presidents modeled, if democracy is to be saved again from judicial supremacy.
For that purpose, abolishing a mostly defunct “corporate personhood” doctrine is not a thoughtful strategy at all. As much as the “corporate personhood” doctrine had helped the Court illegitimately conduct the nation’s economic policy for the benefit of plutocrats eighty years ago, it has nothing at all to do with the Court’s current illegitimate conduct of elections under the pretended authority of four words in the First Amendment, none of which words – unlike the 5th and 14th Amendments which supported the 19th century personhood doctrine – include the word “person.”
More than one scholar has tried to correct this fraudulent and ahistorical claim that Citizens United depended on the doctrine of “corporate personhood.” But it continues as a totally diversionary goal of many amenders that has no actual bearing whatsoever on the rise of plutocracy since 1976, not even to mention the moribund status of this doctrine during the previous forty years when plutocracy was in retreat. For example, the celebrated constitutional scholar and highly successful Supreme Court litigator, Harvard Professor Laurence Tribe, has clarified: “The little-noted theory of Citizens United, after all, was not that corporations enjoy all the rights that ordinary people enjoy but, rather, that the First Amendment protects ‘speech’ and listeners, not particular ‘speakers.’” Devoid of any such expert support to the contrary, fear of the zombie “corporate personhood” nevertheless motivates many amenders.
However disingenuous may be its ruling in allowing corporations to pay for independent political electioneering, the Supreme Court’s legal theory is based on protecting the imaginary “right” of natural persons to receive political advertising from those corporations who are empowered pay for it only as proxies for such voters’ interest in receiving political propaganda. Most if not all of those persons do not want such a right, and none rose in Court to ask for it in Citizens United. This again violated the separation of powers. Justice Stevens dissenting charged that the Roberts 5 “transgressed … ‘cardinal’ principle[s] of the judicial process,” including by that fact that “[i]t is only certain Members of this Court, not the listeners themselves, who have agitated for more corporate electioneering.”
Most, for at least the last century, have wanted Congress to trade off such a useless, unclaimed “right” in exchange for citizens’ far more important right to fair elections, the right that in this day many democracy activists around the world die for – as did American revolutionaries in their day. If anyone has ever died for the right to hear more corporate-financed electioneering propaganda, no such misguided person is known. But it is that fictional person’s bizarre “right” that the Supreme Court used to justify its decision in Citizens’ United, not the oxymoronic “corporate personhood” doctrine that makes such catchy, though fraudulent, copy for non-profit groups’ PR and fundraising departments.
The Court’s decision in Citizen’s United blatantly violated accepted rules for the separation of powers. It also made a highly illegitimate application of established First Amendment doctrine. Foremost scholars of the First Amendment have lacerated the decision for that reason, with a tone seldom heard from the usually Court-worshipping academy. For example, Geoffrey R. Stone of the University of Chicago complains that “these five justices … invalidating [campaign finance] regulations under a perverse and unwarranted interpretation of the First Amendment is, to be blunt, a travesty. These decisions will come to be counted as among the worst decisions in the history of the Supreme Court.” The Dean of Yale Law School, Robert C. Post, Citizens Divided: Campaign Finance Reform and the Constitution (2014) describes the whole Citizens United line of decisions as “pervasively confused” and “fail[ing] to appreciate … basic consitutional distinctions,” 74, just for starters. “[A] line of cases this misguided about matters of such fundamental importance to American politics,” he continues, ”is a frightful thing.” 86, 94. The Court’s use of “arid legalisms to blind us,” 65, while it “fundamentally misunderstands the First Amendment rights the Court seeks to protect,” 67, demonstrates either abject legal incompetence or a naked power grab that “can become an irrepressible engine of judicial control, wresting authority from democratic institutions in virtually any circumstance.” 45. The last quoted criticism by Dean Post goes to the Court’s judicial supremacy pretensions that resides at the heart of the matter.
As hopelessly wrong, dangerous, and deliberately deceptive as all of its “money is speech” decisions are as a matter of both First Amendment law and separation of powers rules, the Supreme Court, again, did not rely on the long-moribund “corporate personhood” doctrine in any way to support any of those decisions. The idea that it did is nothing more than evidence of ignorance — if not worse by those who propagate the idea — about both rudimentary constitutional law and history and about the Court’s actual words in the very case such activists claim they want to overthrow.
The problem with the “corporate personhood” fraud is its untoward impact on strategy. As a result of their deliberate or ignorant misunderstanding of the Citizens United decision, the proposed amendment of these activists to broadly revoke constitutional property rights from small and medium size businesses, and corporations smaller than the 2-10,000 largest, would do more harm than good. It would raise a hornets-nest of justifiable protest from the more than 99.9% of existing corporations, about one for every fifty persons in America, who do not include any expense provision for politicians in their business plans. Many such corporations are themselves victims of plutocrats and of the monopoly and other anti-competitive powers that the decreasing number of plutocrats that rent it can acquire from the systemically corrupt U.S. political system.
Nearly all corporations and the people associated with them are therefore potential allies for true democratic reform, rather than for the fake, ignorant and diversionary demands for reforms that would limit their legitimate rights in the name of overthrowing a plutocracy that most corporations do not even support. So the broadest amendment motivated by the “corporate personhood” soundbite is stupidly way over-inclusive because it creates political enemies out of potential allies. The narrowest amendments aimed at just campaign money from for-profit corporations are uselessly way under-inclusive, since all the corrupt money in politics needs to be addressed, not only the modest portion of it that consists of easily-rerouted money from corporate treasuries that is now invested in independent electioneering enabled by Citizens United.
There is simply no strategic justification for separating out corporate money for special attention, if all interested money is to be eliminated, as it must be in any event to restore democracy. The priority objective of eliminating all plutocratic money from politics needs to be targeted directly and comprehensively, without being burdened by the misdirected, and limiting notion that either attacking broad corporate rights or narrowly just corporate electioneering has anything at all to do with getting that job done most effectively.
Any actual problems that might be associated with some corporate constitutional rights other than in the context of elections would only be excess baggage, of distant secondary concern, for carrying to completion the priority task of getting all interested money, inherently including all corporate money, out of politics. Any corporate rights unrelated to elections simply to not operate to corrupt the only process by which corporate abuses of any other kind, including abuse of constitutional rights, could be subjected to democratic control. Money out of politics, not allegedly excessive corporate rights unrelated to money in politics, is the priority concern for overturning plutocracy. Joining the two concerns together only weakens the prospects of remedying either.
Usually it is Republicans who swallow fantastic lies about the cause and effect relationship of their politicians’ policies designed to serve plutocrats. This was on display, for example, when Republican Speaker John Boehner told reporters he disagreed that the free federal insurance-of-losses-from-betting-the-bank-at-the-derivitives-casino provision of the CRomnibus bill was a “giveaway” to Wall Street that will ultimately hurt consumers. “I don’t believe that to be the case at all,” Boehner said with a straight face. Republicans somewhere back in Ohio probably believed him. Democrats like to laugh at Republicans who are routinely fooled by the likes of climate science deniers, supply side economics “jobs” bills and similar such ignorance. Republicans seem more susceptible to such fraud, provided it is mouthed with sufficient conviction, and word, however ignorant, is seen to reliably guide action. Progressive usually fall more easily victim to politicians whose actions to not follow their, words, if the words sound sincere enough. That progressives could be similarly fooled into believing an easily demonstrable falsehood, that opposing the antiquated “corporate personhood” doctrine or just Citizens United would be an effective way to fight plutocracy, suggests they may be growing more like Republicans, at least with respect to believing well-funded fantasies that serve the interests of corrupt politicians and their plutocratic sponsors.
A political analysis of Frank Baum’s classic, The Wizard of Oz, summarized its eternal populist message that even children can understand: “The powers that be survive by deception. Only people’s ignorance allows the powerful to manipulate and control them.” This also summarizes the key problem facing those who would overturn plutocracy in the U.S. today. The most effective strategy to overthrow plutocracy should be the only political issue worth discussing, until all other important issues are no longer controlled by plutocrats.
Failure is not because that the People do not still have the power to effect change; nor even that they need yet to spill blood to exercise it, such as citizens of other countries must do to obtain fair elections. The People really only need the intelligence to identify ineffective, simplistic, soundbite marketing when they see it, which would then open the necessary mental space to understand the effective, available, much more complex strategies that will be required to conquer plutocracy. If the most effective strategy were as easy and obvious as a soundbite, it would already be widely known and the concentration of corrupt power would not be growing 42 times in 2014 alone, five years after concern has heightened. The People will need to do this for themselves because so far there have been no reliable leaders who seem capable to do it for them.
The Plutocratic Court is the Target
A plutocracy now rules the United States entirely outside the democratic framework of the Constitution. It is formally illegitimate, a usurper. Like a body-snatcher, plutocracy uses the image of a republic as its disguise, while corrupting and destroying all of its essential content. Plutocracy has appropriated the noble name of the United States of America from the Constitution, and under that name has pursued unlawful aggressive wars, corruption, torture, and other violations of human rights around the world that project an image to the world that is the opposite of a democracy. It does so for the profit of a “military industrial complex” that pays politicians to perpetuate and promote unending military adventures. Plutocrats run a “government financial complex” which delivers domestic and international trade policies designed to generate increasing inequality and poverty for citizens.
Plutocracy’s disguise behind the facade of the Constitution maintains the pretense that the beloved Constitution is, in the words of Tom Udall and his professional activist amenders, even to blame for the evils caused by plutocracy. But the plutocracy’s five Supreme Court Justices who usurp the sovereign authority to proclaim what the Constitution means in all cases, under ruled of their own creation unrelated to the Constitution, are themselves operating in serial, flagrant violation of the Constitution. This behavior needs to be criminalized. Under that thin veneer of words on paper with all their important meanings gutted and distorted by these justices, very little, if any, of the original Constitution still remains. The United Plutocrats of America are ruling under an anti-democratic and unconstitutional set of principles invented by their justices on the US Supreme Court for the benefit of the very few, not by the framers of the Constitution for the express benefit of We the People.
Amenders must fundamentally believe that five justices on the Supreme Court who have served the plutocracy their whole working lives, and have deliberately assisted in the overthrow of the Constitution would allow their plutocratic handiwork of a lifetime to be overthrown by a few additional words of text in the Constitution – the meaning of which is left to them to decide. The main skill of Roberts, Scalia and company is in twisting words in the Constitution entirely out of their natural and inherited shape in order to serve their political objective of creating a plutocratic tyranny. They were obviously put on the Supreme Court because of that very skill, since they have no other credentials. None of the Roberts 5 earned their positions by being of any use to society in a way that would otherwise be honored by elevation to the high court of a country that was democratic. As President Jimmy Carter recently said: “America has no functioning democracy at this moment.” Nor has it had one after his presidency, over the years when all the sitting justices were appointed. A majority of them would not be sitting on the Court had the country been a democracy. Their appointments were bought by money in politics to operate a Court for the purpose of legalizing even more money in politics.
It is hardly likely that the Roberts 5, who are the essential tools for this takeover of tyranny, would be induced to stop exercising their one known skill, just because a few more words were added to the Constitution for them to interpret. The Roberts 5 would pervert the purpose of those new words for breakfast, with relish. What is required is legislation with teeth that will prohibit the Roberts 5 from violating the separation of powers, without suffering serious repercussions to themselves under the authority of a government directed by its sovereign People to curb the Court’s usurped powers.
The latest case before the Supreme Court about money in politics concerns the “free speech” right of elected judges to solicit campaign contributions. Williams-Yulee v. The Florida Bar, heard by the Court on January 20, 2015, involves the Court’s illegitimate conversion of the conduct of soliciting money into speech. At the same time, it also intrudes upon the power of states to make rules designed to protect the integrity of the governmental function of selecting judges in a manner that can promote judicial independence from undue influence. Since judges, unlike politicians, are not ethically allowed to sell their decisions or make political promises how they will decide future cases, their requests for money are more like panhandling – a one-sided, “tin cup,” commercial transaction that might be considered as serving the greater good of society in some way. But “panhandling involves a substantial amount of conduct” and is therefore subject to regulation. See Young v. New York City Transit Authority, 903 F.2d 146, 153 (2d Cir. 1990) (“begging is much more ‘conduct’ than it is ‘speech.’”)
Solicitation of money even by political groups can be prohibited when it interferes with a government function, such as “to accomplish the most efficient and effective postal delivery system.” United States v. Kokinda, 497 U.S. 720 (1990)(prohibition of solicitation outside post office upheld). Similarly, even if public “airports have expanded their function beyond merely contributing to efficient air travel, few have included among their purposes the designation of a forum for solicitation and distribution activities.” Accordingly, solicitations of money in public airports can also be prohibited. International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 703 (1992). Justice Kennedy’s concurrence recognized that a “ban on solicitation and receipt of funds” in a public airport could be justified as “a valid regulation of the nonspeech element of expressive conduct.” Conduct that is not exclusively expressive in nature, i.e. which has a nonspeech element, enjoys no constitutional protection as a matter of definition. Conduct is what laws validly regulate. It is well-accepted that “a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” United States v. O’Brien, 391 U.S. 367 (1968). Indeed O’Brien held that if symbolic conduct like draft card burning could conceivably have any other purpose than communication, then a law prohibiting it is constitutional. A conceivable other purpose than communication for the conduct of judges’ “solicitation and receipt of funds” can be easily imagined, is indeed obvious. But the likely decision of the Roberts 5, unless stopped by Congress, is just as obvious.
The selection of judges suitable to carry out an effective “justice delivery system” is a more important government function than transactions that take place at a post office. And judicial elections have not yet been formally designated as any more of “a forum for solicitation and distribution activities” than has any airport. Asking for money is also commercial speech that can be regulated to serve government interests. Under the federal system states are responsible for determining the ethical standards for their own courts as an inherent component of their own sovereignty, which is protected from federal and specifically Supreme Court interference by the 10th and 11th Amendments. Congress has the power to enforce the 11th Amendment against the Court by prohibiting the Court’s enjoining the enforcement of a state law.
The election of judges was introduced in the United States in order to make them “independent from the forces of corruption.” Even though, consistent with that objective, “the decision to bar candidates from personally requesting money has not been a hard call” for state legislators and state bar associations that are not ethically challenged, it no doubt is a “hard call” for at least most of the Roberts 5 who presumably decided to hear the case and at oral argument indicated which way they would be voting.
The historical function of the Roberts 5 and their ideological predecessors on the Court has been to systemically corrupt all government functions in the U.S., including the courts. There can be little doubt that they agreed to hear The Florida Bar case in order to overturn Florida’s ethical rule prohibiting such obviously corrupting conduct as is judicial panhandling. The Florida Supreme Court decision under review, which upheld the rule against judicial solicitations of money, was too obviously correct and also reflects the law in a majority of states that elect judges. The first amendment has no more relevance to the way in which the people, through their legislators, decide to select judges than it does to the time the Court allows lawyers to argue cases before the Supreme Court, or whether lawyers get to argue at all. These are both government functions that serve purposes totally independent of the purposes served by what the framers called “the freedom of speech.” Cf. Butterworth v. Smith, 494 U.S. 624 (1990) (narrow First Amendment exception to grand jury secrecy based on content of speech).
The Democratic Party’s 2014 support for more money in politics under the CRomnibus Act, along with continuous, brazen, judicial blows for plutocratic control – next expected from the Supreme Court by mid-2015, aimed against the integrity of most state courts – are both predictable by-products of advocating the misleading and counter-productive strategy of a constitutional amendment. These judicial and political Wizards of Oz who are products of a corrupt system are only emboldened by the demonstration of public ignorance about what it will actually take to end the legalization of political corruption by the Roberts 5. By taking the 20 encapsulated arguments against advocacy of an amendment listed below, many who have suffered from what has elsewhere been diagnosed as “Amendomania” may now hopefully find their way into remission from this delusion:
Contra-indications to the Constitutional Amendment Nostrum: The 20-Point Bill of Goods Being Sold by Hypocritical Democrats
[On June 3, 2014, the Senate Judiciary Committee heard testimony on Senator Udall’s proposed “Restore Democracy” Constitutional Amendment, S.J.Res. 19. This is one of the better of the numerous amendments that have been offered as a purported means “to overrule Citizens United.” The following is substantially based on Testimony in Opposition to the amendment idea that was received for submission into the hearing record by the Committee.]
The difficult and uncertain process of seeking a Constitutional Amendment is among the least effective methods for solving Supreme Court-generated constitutional crises. Any informed person knows that the “Restore Democracy” proposal is not even serious. Its mere advocacy therefore inexcusably deceives the American people by failing to inform them that, as a remedy for the baneful Supreme Court campaign finance and other equally perverse election law decisions, an amendment has the following enumerated drawbacks:
1) due to the Constitution’s Article V supermajority voting requirements for both federal approval and state ratification, a Constitutional Amendment is far more difficult to achieve than would be the far more effective legislative alternatives that can be adopted by majority votes in Congress and without any state ratification, or other alternative approaches;
2) as FDR taught from the nation’s experience with the 14th and other amendments, a Constitutional Amendment would likely yield unproductive, or even potentially counter-productive, consequences in the Supreme Court by being interpreted to mean “what the Justices say it is rather than what its framers or [the People] might hope it is.” Such interpretation in the hands of the five judge politicized majority of the Roberts Court, on the basis of experience, would predictably produce a “topsy-turvy” (to use Justice KaganHYPERLINK “http://www.opednews.com/articles/Roberts-5-strike-another-b-by-Larry-Kachimba-110627-821.html”‘HYPERLINK “http://www.opednews.com/articles/Roberts-5-strike-another-b-by-Larry-Kachimba-110627-821.html”s term) reversal of the text’s original intent, just as they routinely reverse the intent of the original Constitution;
3) as the 11th (state sovereign immunity) and 15th (voting rights) Amendments taught, a Constitutional Amendment could easily remain merely symbolic, going largely or totally unenforced by the Supreme Court for as long as a century or two;
4) as taught by the lesson of the 24th (federal poll tax) Amendment, a Constitutional Amendment could well create potentially counterproductive precedent having the unintended consequence of making real reform more rather than less difficult;
5) advocacy of a Constitutional Amendment is not responsive to, indeed tends to counter-productively legitimate, the egregious decisions of the Supreme Court, like its latest legalization of systemic political corruption in McCutcheon. In that recent case, as in many others, the Roberts Court invented constitutional principles out of thin air, with no more support in the text of the constitution or its history than Dred Scott had in 1857. McCutcheon‘s new rules now formally prohibit the republic from mounting any effective self-defense against its own overthrow by systemic party-managed corruption. McCutcheon also legalized the insidious effect of individual corruption practices that routinely enable implied – wink-and-nod — policy-for-money exchanges that leave no incriminating evidence trail of the express deal-making which, according to the Roberts Court’s flawed and fact-free history, was apparently the sole concern of the framers. Attacking the Constitution rather attacking the crimes being committed against the Constitution by the Roberts 5 is diversionary, and implies that a judicial supremacist decision like McCutcheon based on nothing written in the Constitution or rationally supported by its history was actually a valid exercise of judicial power;
6) a Constitutional Amendment would be deliberately redundant since it would accomplish no more than authorize new legislation, when Congress already has the needed power to enact far more effective Court-curbing legislation to overturn all the “money is speech” cases than any amendment currently proposed would authorize. This is the same kind of Exceptions Clause legislation that in most sessions of Congress is routinely proposed by members to address other, far less appropriate, issues. The most appropriate possible use of these powers would be to preserve the People’s sovereign power over their representation in Congress by enforcing the rules that safeguard the Constitution’s paramount separation of powers against the usurpation of legislative powers by the judiciary;
7) advocacy of a Constitutional Amendment sends a deceptive and historically inaccurate message to concerned citizens that an amendment is, as Senator Udall erroneously alleged in the Subcommittee’s July 24, 2012 hearing, the “one option for real reform” necessary to solve the kind of constitutional crisis generated when “the Supreme Court has incorrectly” interpreted the Constitution. There are more than just one option to stop the Court’s deliberate service to powerful, anti-democratic, ruling interests, when that service also flagrantly violates the Constitution’s separation of powers. Such a statement not only falsely asserts that there is only “one option” it also implies that an amendment could even accomplish “real reform,” without accomplishing much more than just an amendment.
By comparison with the effective legislative alternatives that could be specially designed to reliably meet the current constitutional crisis, an amendment indeed accomplishes nothing whatsoever by itself. An amendment is neither necessary nor sufficient to recover our lost democracy. Sen. Udall himself admits that the Court uses “tortured logic” on this issue and has prevented “our democracy function[ing] the way our founders intended.” How can the Court be expected to treat Sen. Udall’s own amendment any differently than the tortured and unfaithful manner in which he knows it treats the rest of the long-venerated Constitution of the founders on this very issue, not to mention many others? His expectation for change of the Court’s behavior by means of changing the text of the Constitution is as irrational as expecting a criminal to be rehabilitated by reading a platitude;
8) a Constitutional Amendment is diversionary of political energy from Congress’ more effective legislative solutions that have been used by Congress, and at least once to solve a major constitutional crisis involving the Court’s violation of the separation of powers. When 54 Democratic and Independent Senators voted for Sen. Udall’s constitutional amendment on September 11, 2014 they did so in full knowledge that the amendment could not receive the 67 votes necessary to take just this first of the 40 steps involved in the amendment process. They could have used these 54 votes far more effectively to pass a bill to strip the Court of jurisdiction to decide the constitutionality of election integrity laws. Instead, when given the opportunity in December 2014 to vote against a law that will cause significantly more political corruption, a majority of these same 54 Senators voted for it, no doubt thinking that their earlier hypocritical vote for a futile amendment would provide them diversionary political cover;
9) advocacy of a Constitutional Amendment delivers the wrong message to the Supreme Court that it can continue its abuse of the Constitution and get away with it, so long as Congress proceeds to chase its own tail in faux pursuit of a futile and ineffective amendment. The judicial supremacist justices surely understand what Professor Richard Hasen of the University of California, Irvine, School of Law, a leading expert on election law, wrote in his paper titled “Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform”:
There is good reason to believe that many of these proposed constitutional amendments to ‘reverse’ Citizens United, especially those coming from elected Democratic officials, are political theater and not serious attempts to deal with problems of campaign finance regulation…. The constitutional amendment route is not a serious policy proposal.”
Two prominent constitutional scholars support Prof. Hasen’s conclusion. Harvard’s Professor Tribe agrees specifically with respect to the Court’s “money is speech” jurisprudence that “the amendment path… probably represents a political dead end.” Erwin Chemerinsky (Dean, University of California, Irvine) flatly states: “A constitutional amendment has zero chance of being passed and enacted. There are many things legislatures — Congress, state legislatures, city councils — could do to reduce the effects of Citizens United. I think the effort to amend the Constitution diverts focus and energy from the possible legislative changes.”
There are no comparably eminent election law or constitutional scholars who have given considered support to such an amendment as a creduble strategy for legal reform. As Jefferson said about impeachment as a remedy, for the same reasons an amendment “is not even a scarecrow” to the Court, even less than impeachment. So long as advocacy of an amendment remains Congress pricniple approach to restoring democracy, the Court will continue its desecration of the Constitution.
10) hypocritical pursuit of a Constitutional Amendment violates Congress’ sworn duty, not to change the Constitution but, to support and enforce it, as Madison and the framers expected Congress to do. This is especially true when the separation of powers has been blatantly and repeatedly trampled underfoot by a politically partisan faction of the Supreme Court. Congress should apply the checks and balances the framers provided to Congress for that very purpose. Failure to exercise that power in defense of the republic is a violation of Congress members’ oath of office, Article VI, Sec.3.
11) obviously futile pursuit of a counter-productive Constitutional Amendment ignores the directly applicable historical lesson of FDR’s legislative proposal, which academic research now confirms to be a statistically supported fact, that they can be much more than “a scarecrow.” Realistic Court-curbing bills, even when not enacted, have a significant (50%) deterrent effect on judicial supremacist decisions such as Lochner and McCutcheon;
12) as taught by the leading scholar of constitutional change, Yale Professor Bruce A. Ackerman, in his 3 volume masterpiece We the People, a Constitutional Amendment has historically never provided the means for effectuating profound political change, although occasionally amendments have been the result of such change. Restoring democracy from the clutches of plutocracy would arguably be the most profound political change since the Declaration of Independence. Professor Ackerman’s general findings from extensive research in the methodology of such constitutional change is: “Every constitutional movement now understands that Article V [amendment] is a road to nowhere.” (2009), 129-30;
13) pursuit of a Constitutional Amendment like Sen. Udall’s has already been proven unsuccessful, after repeated, sincere, and adroit legislative attempts by Senator Chet Hollings’ and others to adopt a similar proposal failed in every session since 1983 in eleven successive Congresses of the less systemically corrupted environment prior to the Roberts Court. In fact there has been no constitutional amendment of any kind both proposed and ratified since 1971, several years prior to the Supreme Court’s systemic corruption of politics in Buckley v Valeo (1976). The very popular and 70% ratified ERA was stopped in its tracks within a year after Buckley legalized political corruption. Corruption since Buckley precludes any progressive constitutional reform, just as it did for a similar period of time in the first Gilded Age, between 1870 (15th Amendment) and 1913 (16th Amendment).
14) as currently contemplated, the proposed “Restore Democracy” Amendment would be incomplete by omitting treatment of the equally judicial supremacist election law decisions appointing a President in Bush v Gore (2000) on ridiculously flimsy equal protection grounds, or effectively overturning the Voting Rights Act in Shelby County v. Holder (2013) on the basis of the antebellum slave-power theory of “sovereign equality.” That this Dred Scott doctrine was eradicated by the 15th Amendment provides an example of the Court’s disregard for constitutional amendments and the need for legislation stripping judicial supremacist justices of jurisdiction over 15th Amendment enforcement clause legislation as well as First Amendment “money is speech” doctrine, if not simply of all election matters, except as jurisdiction may be conferred by law. Failure to deal with the full agenda of election issues makes even more piecemeal what is already a piecemeal amendment strategy. Such piecemeal reforms are counterproductive as a remedy for systemic corruption;
15) a Constitutional Amendment is an inadequate format to provide the detail necessary to successfully get money out of politics. “No ordinary amendment,” as T. Roosevelt’s 1912 attack on the Lochner era Court explained, “would meet this type of case.” Attempts to draft an “money is speech” amendment that would reliably do more good than harm have so far failed TR’s test. Extremely detailed and comprehensive legislation is necessary to prevent a hostile Court from circumventing reform intentions, as well as to avoid a piecemeal approach to reform;
16) a Constitutional Amendment suggests the contrary of T. Roosevelt’s directly applicable observation that “the fault is not with the Constitution, the fault is in the judges’ construction of the Constitution.” Promoting an amendment that scapegoats the Constitution, thereby delivering a gratuitous public insult to the revered founding compact as if it were the problem, when in fact it is the solution, leaves the proponents of an amendment, and reform, open to effective political counter-attacks by enabling opponents of election integrity to pose as defenders of the Constitution in opposition to “amending the First Amendment.” For example, Senator Ted Cruz alleged in a widely publicized soundbite that “Democrats abandon the Bill of Rights.” The misguided strategy of attacking the Constitution, rather than the Justices who have unconstitutionally defied it, allows politicians like Cruz to tell voters that Democrats’ would have “repealed the First Amendment and taken away your ability to speak.” As one commenter jibed, an amendment proposal is the “latest congressional equivalent of writing an editorial. Those who prefer James Madison’s First Amendment to Senator Udall’s may rest easy.” Senate Minority Leader Mitch McConnell bemoaned “the Democrat-led Senate focusing on things like reducing free speech protections for the American people.” It is self-defeating politics to give politicians like Cruz and McConnell and their flaks in the mass media the opportunity to defend the First Amendment rather than make them defend the bogus, corrupting, historically, factually and logically unsupported decisions of the Roberts 5, which in fact violate Madison’s First Amendment. Supporters of democracy should align themselves not against but rather with the Constitution and against five politicians in judicial robes, and their corrupt supporters in Congress;
17) even if proposed by Congress, “13 states containing 5% [now 3%] of the voting population can block ratification” of the amendment proposal if, as FDR cautioned, “any powerful economic interests … oppose” it. ALEC, which for example channels the financial power of such powerful interests into state legislatures, surely will oppose any effective interference with the plutocratic jurisprudence of the Supreme Court which benefits solely those same interests. ALEC could easily block ratification in 13 states.
18) The Constitutional Amendment process is designed primarily to fix the situation faced by the Reconstruction Amendments, the 19th Amendment, and 24th Amendment where there are a minority of recalcitrant states that would require a constitutional amendment to force their state laws into line with consensus national norms. There is no such situation with money in politics which, rather, corrupts state and federal governments equally, just as it has invalidated both state and federal election integrity legislation of various kinds.
19) Seeking a Constitutional Amendment is inefficient. Even in the hypothetical circumstance, so attenuated as to be merely a fatuous fantasy, that an effective amendment were in any rationally foreseeable future proposed by 2/3 vote of both houses of a Congress which is polarized as a consequence of its intense organized competition for corrupt contributions, and were then ratified by ¾ of the ALEC-influenced and similarly corrupted state legislatures, and were then not turned on its head to do more harm than good by the deliberate misinterpretation of a politicized CJ Roberts-led Supreme Court faction which has proven expert in just such artifice – it would still depend for its enforcement upon enactment of comprehensive legislation effectively excluding big money from politics if an amendment is to have any actual impact on cleaning up systemic political corruption. If all this could be accomplished, then such a law could have been enacted in the first place, without the long, dilatory and precarious amendment-detour, provided only that such legislation also contained an effective Article III, Sec. 2, “Exceptions Clause” jurisdiction-stripping provision built on the example of those bills which have been routinely submitted in most sessions of Congress by former Rep. Ron Paul and others over the years. Accordingly, an amendment necessarily initiates two extremely difficult campaigns when only one – the far easier one – would suffice, and that one is not an amendment.
20) An amendment does not guaranty continuity of reform into the future as some advocates contend. The Reconstruction amendments languished for a century after Reconstruction, for example. In any event politics always takes place in present time, not the future. The future effect of change in constitutional text is of far lesser concern than most effectively addressing the current crisis, the overthrow of democracy by plutocratic corruption which has already been achieved by the Supreme Court. The best guaranty for a democratic future is not an amendment but the most effective way to recover a democratic present. Only in the context of a democratic present would be possible to seek to do more good than harm in trying to lock the gains into constitutional text.
On the other side of this question, standing in opposition to the above 20 important reasons why the constitutional amendment idea is a misguided strategy for restoring democracy or public integrity, can be found little more support for the amendment idea than misunderstood history, “bumper-sticker politics,” the fundraising soundbites of professional activists, and the even more conflicted interests of hypocritical politicians. These interests provide little confidence of a sincere intention by these proponents of a constitutional amendment to actually reform the corrupt political system within which the latter have succeeded in gaining office and the former manage a complex of non-profit businesses that support those politicians.
The most that can be said by any credible observer in support of the amendment idea is the occasional suggestion, such as the following, that although an “amendment is entirely unrealistic at this juncture” and anyway “would not solve the problem,” nevertheless “a campaign for such an amendment might serve to inform and sharpen public opinion on the subject, which is already highly critical of campaign spending.”
This is self-contradictory. As this particular commenter seems to – and must – concede, along with Tom Udall and many others, polls already show that public opinion, by large majorities, is sufficiently informed to be highly critical of Congress, money in politics generally, and the political corruption it breeds. Why then is there a need to further inform the public about the problem of corruption – which huge majorities already know about – rather than about a realistic strategy for its solution? If the public is to be further informed, why should it be about an idea that is both “entirely unrealistic” and “would not solve the problem” anyway? A publicity campaign claiming that a constitutional amendment is the only solution to systemic political corruption, while getting hypocritical politicians off the hook for routinely wallowing in, supporting and expanding that corruption, is both misleading to the public and counterproductive to the objective of reaching the goal of restoring political integrity and hence democracy.
Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation.