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Pierce writes: "Lost in all the noise ... of the coverage of the Bowe Bergdahl story this week was the fact that the Senate began the long and laborious and ... utterly futile work of crafting a constitutional amendment to try and repair the damage done to democracy by the efforts of the current Supreme Court."

(photo illustration: DonkeyHotey/Flickr)
(photo illustration: DonkeyHotey/Flickr)


And So the Sale of Our Democracy Rolls On

By Charles Pierce, Esquire

07 June 14

 

ost in all the noise -- and all the towering bad taste -- of the coverage of the Bowe Bergdahl story this week was the fact that the Senate began the long and laborious and (I suspect) utterly futile work of crafting a constitutional amendment to try and repair the damage done to democracy by the efforts of the current Supreme Court, in its Citizens United and McCutcheon rulings, to legalize influence peddling and to privatize general political corruption. Senator Tom Udall of New Mexico -- whose uncle I strove mightily to put in the White House almost 40 years ago -- brought a proposed constitutional amendment before the Senate Judiciary Committee that would reverse those decisions, and try to stem the flood of corporate and private -- and largely unaccountable -- money that promises to swell even further over the next several election cycles. As Amy Howe of ScotusBlog reported:

Senator Patrick Leahy (D-Vt.) opened the hearing by describing the goal of the proposed amendment: "to repair the damage done by a series of flawed Supreme Court decisions that overturned longstanding precedent and eviscerated campaign finance laws." Leahy emphasized recent rulings in Citizens United v. Federal Election Commission, holding that the government may not prohibit corporations or unions from spending money to support or denounce individual candidates in elections, and McCutcheon v. Federal Election Commission, striking down aggregate limits on campaign contributions. In his view, the Court has "opened the floodgates to billionaires who are pouring vast amounts of unfettered and undisclosed dollars into political campaigns across the country." Leahy emphasized that he had "long been wary of attempts to change the Constitution because I have seen" such proposals "used, like bumper stickers, merely to score political points." But in his view, an amendment is necessary here because the Court's decisions in Citizens United and McCutcheon were "based . . . on a flawed interpretation of the First Amendment."

Howe states quite correctly that this proposal does not stand a snowball's chance of ever becoming an actual constitutional amendment, but Udall's effort at least clarified the positions of both sides.

Leahy was followed by Senator Charles Grassley (R-Iowa), the Committee's ranking Republican member. Leahy had previewed some of the key themes that other supporters of the amendment would echo in the hearing, and Grassley did the same for Republicans. He contended that, "today, freedom of speech is threatened as it has not been in many decades," and he observed that the proposed amendment would be the very first amendment in history to the Bill of Rights. Grassley warned of the amendment's potentially broad sweep, cautioning that it could, for example, allow Congress to eliminate campaign contributions altogether. "It's outrageous," he concluded, "to say that limiting speech is necessary for democracy."

(I would also argue to Senator Grassley that the Reconstruction amendments certainly were "amendments" to the Bill of Rights in that they ordered to states to abide by the original provisions of the Bill of Rights.)

And that is where the Supreme Court has left us. A debate over the preposterous notion that money is speech, and that more money means more speech, and this in a world in which the same court found reason to gut the Voting Rights Act so that it would be hobbled in the new era of big-money campaigning that the Court inaugurated in its other two decisions. The real joker in the deck is that the decisions -- and Citizens United, in particular -- are written so tightly that any legislative action to reverse them short of a constitutional amendment likely will fail. (And forget about state action. A century-old Montana law banning corporate contributions to political campaign was overturned by this same Supreme Court, which used Citizens United as a precedent for doing so.) However, this isn't the first time that Congress, and citizens, have attempted to propose a constitutional amendment to deal with the consequences of a Supreme Court decision in the field of campaign finance.

As Richard Bernstein recounts in Amending America, his study of the amendment process throughout American political history, in 1980, a group of Washington wise men put together something called the Committee On The Constitutional System, which proposed to update the work of the Founders and to "...identify the outmoded features"of the Constitution "separating them from the good and durable parts of the system." The CCS proposed a series of new amendments, including one that, as Bernstein puts it, would "amend the First Amendment to provide Congress authority to set campaign spending limits (overturning the Supreme Court's 1976 decision in Buckley v. Valeo). Granted, the CCS largely was nothing more than a high-class thought experiment, but its proposed campaign-finance amendment tracks Udall's proposed amendment almost exactly and, like Udall's, it addresses a Supreme Court decision that guaranteed more money sluicing through the system.

The Valeo decision, of course, was the first crack in the dam. In 1971, Congress passed the Federal Elections Campaign Act, which it then amended three years later in the aftermath of the Watergate scandal, which had been financed by a slush fund of unaccountable campaign money. The law limited contributions by individuals and groups, and candidates themselves, as well as providing for a system to inaugurate the public financing of campaigns. It was challenged by a number of people, including then-Senator James Buckley of New York and former senator Eugene McCarthy. In an unsigned per curiam decision, the Supreme Court struck down provisions of the law in a muddled decision in which five Justices, including Chief Justice Warren Burger, dissented in part from the majority's opinion, but most of the dissents argued that the Court did not go far enough in respecting the role of campaign contributions as political speech. (This was the bug in the ear of Burger, who wrote that "contributions and expenditures are two sides of the same First Amendment coin.") The taproot of our present Citizens United-McCutcheon system can be traced back to Burger and his First Amendment coin. Reading the decision, philosopher John Rawls was particularly prescient. Rawls argued that the decision "runs the risk of endorsing the view that fair representation is representation according to the amount of influence effectively exerted."

So the current Court has struck down decades of precedent in the field of campaign finance, and it also has arranged things that the only real remedy is one that is impossible to achieve. The consequences of 40 years of trying to clean up the rot with which big money infects the structure of democracy has been a series of legal decisions that sanctified the rot with the most profound blessing the Constitution can provide. The consequences of those decisions have been entirely foreseeable. If Udall's Sisyphean effort does nothing more than draw all our attention to those simple facts, it will be quite worth the trouble.

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+59 # reiverpacific 2014-06-07 10:56
Question -to plow a clearer path through this well-written but still relatively muddy legalese for my simple mind, at what point might a Supreme Court Judge (I refuse to use the term "Justice" for this corrupt lot) -or more than one as citizens United 1 & 11 stink of collusion to me, be RECALLED or IMPEACHED for abuse of office, dragging them throughout the bright light of public contempt (if the US patsy owner-media had the bollocks to run with it)?
A constitutional amendment to bring that into reality would perhaps be a good and realistic first move.
Or am I just dreaming??
 
 
+8 # HowardMH 2014-06-07 11:54
you just dreaming and once again I have to tell you what really needs to be done. Until there are thousands (OK I will concede there are not that many that even understand what is going on in Washington DC, much less get pissed off about it so let’s say One thousand really, really pissed off people on Capital Hill all at the same time – with base ball bats, or 2 x 2s) raising some serious hell against the Lunatics, and idiots absolutely nothing is ever, ever going to happen to these totally bought and paid for by the richest 50 people in the world that are becoming more and more powerful with each passing rigged election thanks to the stupid people.
“For you Coo Coo Birds that think the above means attack with weapons, that is not what I said. 2 x 2s do not constitute attacking with weapons, but it just might get the imbeciles on Capital Hill attention IF enough showed up at the same time. As some retards already found out delivering cantaloupes didn’t get the job done.
How much success have you had with the TOTALLY NON VIOLENT protests over the last few years?
I’m no fan of Sarah’s but this comment is just so appropriate. So how is that Hopei, Changie working out for you now?
 
 
+10 # reiverpacific 2014-06-07 13:05
Quoting HowardMH:
you just dreaming and once again I have to tell you what really needs to be done. Until there are thousands (OK I will concede there are not that many that even understand what is going on in Washington DC, much less get pissed off about it so let’s say One thousand really, really pissed off people on Capital Hill all at the same time – with base ball bats, or 2 x 2s) raising some serious hell against the Lunatics, and idiots absolutely nothing is ever, ever going to happen to these totally bought and paid for by the richest 50 people in the world that are becoming more and more powerful with each passing rigged election thanks to the stupid people.
“For you Coo Coo Birds that think the above means attack with weapons, that is not what I said. 2 x 2s do not constitute attacking with weapons, but it just might get the imbeciles on Capital Hill attention IF enough showed up at the same time. As some retards already found out delivering cantaloupes didn’t get the job done.
How much success have you had with the TOTALLY NON VIOLENT protests over the last few years?
I’m no fan of Sarah’s but this comment is just so appropriate. So how is that Hopei, Changie working out for you now?

O' no, not that worn-out old needle stuck-in-it's-b y-now-canyon-li ke groove again!
If you want to be taken with anything other than a pinch of salt for Gawd's sake write something original; a fuckin' alphabet would be an improvement on this hackneyed doggerel!
 
 
+8 # AndreM5 2014-06-07 14:26
As far as I know there has been impeachment of only one Supreme, somewhere in the mid 1800's. And he was amazingly corrupt, shoveling barrels of cash to legislators.
 
 
+7 # Puck 2014-06-07 23:09
You're right, there has been only one: Samuel Chase in 1805. He was acquitted and it wasn't about money. The allegation was that his partisan politics was influencing his judgement. The impeachment was, itself, as political as anything Chase was accused of. For obvious reasons, judges must be immune from impeachment because of the unpopularity of their judgements, but these bastards (Thomas and Scalia in particular) are guilty of gross misconduct in affiliating themselves publicly, and accepting compensation (lots of it!) for participating in partisan politics.
 
 
+3 # pappajohn15@Gmail.com 2014-06-10 06:34
Not immune from impeachment. Never immune from impeachment. The checks-and-bala nces won't work otherwise.

You see, you could get a bunch of unfair, partisan, regressive Neanderthals on the Court and then...

Oh, wait.
 
 
+27 # Gnome de Pluehm 2014-06-07 11:03
I am in contempt of several of the judges on this court. That is not to say that I have contempt for the court.
 
 
+35 # revhen 2014-06-07 11:27
Not one mention of Sen. Bernie Sanders who originally proposed a similar amendment (or is this the same one?) About time that the more middle of the road folk got on board for this.
 
 
+36 # tedrey 2014-06-07 11:37
Where is this "free speech" anyway? There's no such thing. If you don't pay (advertising, owned media, political party) you're not going to be heard. It's that simple, and that unfree.
 
 
+21 # medusa 2014-06-07 12:04
A proposal for action is a good idea. Even if it can't work, it may have sisters, brothers, and friends, who can. Why not temper the criticism and give it a boost .
 
 
+19 # Malcolm 2014-06-07 13:21
As I've repeatedly said, this TYPE of amendment has near zero chance of success, because it relies on the very people who benefit from these bribes, aka contributions.

A constitutional convention, on the other hand, almost totally bypasses Congress, being called by the legislatures of at least 34 states.

I think all the effort to get Congress to write an amendment is probably a waste of time, and may actually be a deliberate diversion tactic.

Not that getting 34 state legislatures on board would be particularly easy, obviously, but at least they are not QUITE as beholden to legalized bribery.
 
 
+25 # Malcolm 2014-06-07 13:38
Indeed, if Congress were NOT in support of Citizens United, actually in favor of corporate rule in general, as long as they get "their fair share" of corporations' ill gotten gains, they already have the power to overturn the Supremes' corrupt decisions in this area. It's called the "Exceptions Clause", and this is not some new age gimmick-it's been used several times to put a check on corrupt Supreme Court (in)Justices.

As Abe Lincoln said, "We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”
 
 
+18 # Radscal 2014-06-07 13:42
Overturning these SC rulings is a step in the right direction, but our government was quite corrupted before them, so this alone is not a solution.

We need to ban all forms of bribery, and then prosecute them as treason.
 
 
+1 # Babylonia Beaune 2014-06-08 09:08
Yes, ban lobbying, too, as well as campaign and election money. Make them crimes. Make it a crime to "take a legislator to lunch" or provide a vacation or a trip. All of it is corrupt and many other countries forbid it. The other things to do are 1) remove Corporate Personhood and 2) prohibit the Supreme Court from judicial review.
 
 
+16 # hsfrey 2014-06-07 15:37
There IS a way that states can restrain the political power of Corporations without running afoul of the Citizens United decision!

Corporations are entirely dreatures of the states, and have no powers not given them by state corporation codes.

In particular, without abolishing the newly discovered "right" of corporations to indulge in political action, states could specify the Procedures required in order to do so.

I've drafted a bill to amend the California Corporation Code to require majority pre-approval by Shareholders (not Shares) for any political expenditures.

It would also require out-of-state corporations to verify that they had done the same before intervening in State political activities.

Unfortunately, I can't find a legislator to sponsor it, or a similar bill.

The problem is not that there's no way , but that there's no Will!
 
 
+17 # PaineRad 2014-06-07 15:39
Only this Court? What about the legacy of the corrupt Court of the 1880s that gave us Santa Clara and Pembina Consolidated and Plessy v Furguson? Or for that matter almost the entire history of the SCOTUS? The first Chief (In)Justice is infamous for saying that "Those who own the country ought to govern it." Or the court that in 1919 released corporations from any responsibility to anyone other than shareholders? Or the Berger Court that decided Buckley and Bellotti or the Rehnquist Court that decided Bush v Gore and a dozen other atrocities. While the Roberts Court is certainly the worst in the last 100 years, it is not that far outside of the pattern. Except for the late 30s through the very early 70s, the history of the SCOTUS is solidly on the side of wealth and property.

I'd suggest a constitutional amendment to limit the terms of SCOTUS judges to something like 12 - 15 years. The current spectacle of 30+ years if incompetence and corruption is flat out unacceptable.
 
 
+26 # timmuggs 2014-06-07 15:47
THe key is this: Even if corporations are people, that does not mean they are citizens. Can non-citizens make campaign contributions? I don't think they should be able to.

Citibank's major shareholders are the Saudi Royal Family. Do we want them impacting US elections? I don't think so.

Russia has a huge sovereign wealth fund. What if Putin bought a company listed on the NYSE and started funding campaigns and political actions? Is that what we want?

Corporations are not citizens, they may be owned by anyone, including foreign countries, non-citizens, criminals, drug lords, emperors and sheiks. Do something about this, please!
 
 
+6 # PaineRad 2014-06-07 15:58
The indictment of impeachment has to come from the House. Then the Senate tries the case which requires a 2/3 vote to convict. Does anyone seriously expect to get those votes in either chamber any time soon? Impeachment, no matter how deserved, is just not going to happen for so many reasons.
 
 
+16 # reiverpacific 2014-06-07 17:09
Quoting AndreM5:
As far as I know there has been impeachment of only one Supreme, somewhere in the mid 1800's. And he was amazingly corrupt, shoveling barrels of cash to legislators.

Well then Thomas would be a good one to start in with.
He's as cynically bent as a fishhook and his wife is into all kinds of fundraising and collusion for the Tea Party.
Here's just ONE example, http://crooksandliars.com/karoli/impeach-justice-clarence-thomas
I can just hear the Rethugs howling "Racism, racism" in a perfect storm of self-righteous faux-indignation!
And then there's Thomas' string-pulling bloviating puppet-master Scalia, both of whom are members of the secretive, elitist Catholic cult Opus Dei, sworn to serve and put it's views and morés before all else.
If THAT'S not a good start I don't know what is!
 
 
+7 # Vardoz 2014-06-07 19:45
Citizens United was passed knowing full well that the 99% did not have a level playing field when it came to their version of free speech. The ability to use money to implement free speech did not make it free. The ability to implement money to facilitate free speech actually robs the majority of Americans to have the ability to exercise free speech because ordinary people cannot afford the same amount of money to exercise their right to free speech the way billionaires can. As soon as money is added to the equation free speech is no longer free. It is very expensive and this is why money needs to be applied in such away as to enable the majority to be able to participate in the process so that there is a level playing field. Money has totally corrupted the notion of "free speech" - If it were truly free then it would not cost so much and everyone would have the opportunity to express their right to "FREE SPEECH." The Supreme Court did not regulate or articulate the real meaning of free speech when making this ruling and did not protect the majority from the harm that money would play in depriving the 99% of their first amendment right. Funding campaigns is not free speech!
 
 
+5 # reiverpacific 2014-06-07 19:50
Quoting timmuggs:
THe key is this: Even if corporations are people, that does not mean they are citizens. Can non-citizens make campaign contributions? I don't think they should be able to.

Citibank's major shareholders are the Saudi Royal Family. Do we want them impacting US elections? I don't think so.

Russia has a huge sovereign wealth fund. What if Putin bought a company listed on the NYSE and started funding campaigns and political actions? Is that what we want?

Corporations are not citizens, they may be owned by anyone, including foreign countries, non-citizens, criminals, drug lords, emperors and sheiks. Do something about this, please!


I get y'r point.
However, I'm a non-citizen (mostly because of the looney, criminal health-don't-ca re non-system here) but contribute small amounts when I can to certain progressive causes, Senators and Congress-critte rs like our own Jeff Merkley, Eliz' Warren, Al Franken and Alan Grayson (of course you get pestered to death just after one small donation).
But I'm not and never will come close to being in the Saud/Koch/Adels on, -aye and lets be honest- Buffet on the other side category.
Still, as I live, work, own property and pay taxes here -and am by nature a left-oriented political animal but can't vote, it helps me feel that I'm doing SOMETHING positive for progressive causes, no matter how insignificant it may seem.
Just a wee look from the perspective of a Resident Alien of "The little people".
 
 
+5 # PaineRad 2014-06-08 03:01
SJR 19 is useful though not particularly valuable. Until it is amended to clarify that corporations and other entities created by govt. are not persons with constitutional rights, it is not complete, it will not be particularly effective. Our trouble with BIG MONEY goes well beyond campaign issues.

Question. If a corporation is a person under the purview of the 14th Amendment, aren't stockholders of that corporation slave owners in violation of the 13th Amendment?
 
 
+4 # ericlipps 2014-06-08 06:11
Grassley's argument comes down to the same tired Republican claim that money is speech.

In the GOP's view, you're entitled to all the free speech their money can buy.
 
 
+1 # skipb48 2014-06-08 06:19
This would have been a much more useful article if the language of the proposal had been included. As it stands there is no way to judge the authors viewpoint with his conjecture and not the facts.
 
 
+1 # Floridatexan 2014-06-09 15:28
"...Grassley warned of the amendment's potentially broad sweep, cautioning that it could, for example, allow Congress to eliminate campaign contributions altogether." ONE COULD ONLY HOPE.

"..."It's outrageous," he concluded, "to say that limiting speech is necessary for democracy." TRANSLATION: The GOP is TOAST if they can't accept huge donations from well connected donors (with anonymity).
 
 
+1 # Jingze 2014-06-10 06:05
Money talks.
 

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