Ivory tower

Citizens United: The view from the ivory tower has a blind spot 

By Jeff Clements

Millions of Americans across the political spectrum are working for a Constitutional amendment to overturn Citizens United and end the corruption of overwhelming, unlimited money of an elite few in our elections. That's why sixteen states and 650 cities and towns across the country have enacted amendment resolutions, including by ballot initiatives that frequently receive 75 percent of the vote. This momentum has pushed the Constitutional amendment drive into the presidential race, with both Democrat Hillary Clinton and Republican Lindsey Graham (S.C.) calling for the 28th Amendment to end Citizens United.

This historic drive for the 28th Amendment is a wonderful sign that we Americans still have what it takes to block attempts to enshrine inequality and privilege into Constitutional doctrine.  But two very small and unduly powerful elites aren’t happy. One of those, of course, is the 1 percent who use campaign contributions and Super PACs to gain access and influence in Washington. The second one is a set of liberal law professors that include Kent Greenfield at Boston College, Rick Hasen at University of California-Irvine, and sometimes, when he is not saying he favors an amendment, Larry Lessig at Harvard.

Among their arguments, they say Citizens United is not really about corporations receiving the rights of human beings. They say disclosure will address the problem, or that if we somehow had public funding of elections, all would be fine.  They say a Constitutional amendment is a “pipe dream.” They’re wrong.
The growing momentum for a 28th Amendment reflects the repeated demonstration in polls and ballot initiatives that most Americans agree that billions of dollars from global corporations and a tiny fraction of the wealthy drives systemic corruption and worse, creates two radically unequal classes of citizens- those who can play the money game and those who cannot. Very few think that a democracy of equal citizens can survive a mandated regime of unlimited election spending by global corporations and a billionaires’ club.

As a result of the work of millions of Americans who have called for the 28th amendment, the Democracy For All Amendment has been introduced in the Senate with 41 co-sponsors and in the House with 103 co-sponsors. The Amendment would permit reasonable limits on contributions and campaign spending, eliminate Super PACs and restore traditional restrictions on corporate and union campaign spending that Citizens United struck down. The 28th Amendment explicitly restores the core American Constitutional values of political equality, fair elections, and government accountable to citizens and constituents, and protects freedom of speech and the press.

Professor Hasen, though, dismisses the Constitutional amendment, writing in Slate that we should just leave it to him and a few of his colleagues: “These days it is much easier to change the Constitution by changing the Supreme Court than by passing an amendment.” Professor Lessig takes to Twitter to cheer on Hasen’s opposition to the Amendment with a new hashtag: #RickRightAgain.

Meanwhile, Professor Greenfield breezily dismisses the alarm felt by many Americans about the fabrication of Constitutional rights for corporations: “Saying corporations are not persons is as irrelevant to constitutional analysis as saying that Tom Brady does not putt well in handicapping the NFL playoffs.”

So much for the elimination in Citizens United of limitations on campaign spending by corporations, labeled a “disadvantaged class of person” by Justice Kennedy. And so much for the repeated reliance on Citizens United by corporations to claim religious rights to evade health care laws, equal protection rights to block minimum wage laws or to extract corporate tax subsidies, and free speech rights to conceal chemicals or genetically modified organisms in food.

It is not hard to detect an unseemly elitism in the professors’ disdain, a lurking fear or dismay to see Americans without legal credentials wading into their Constitutional playhouse. Hasen dismisses those “clamoring” for an amendment; Lessig smears those he calls an “angry gaggle of activists” and lectures that “no sane person” thinks the Democracy For All Amendment is for real.

Many law professors, lawyers and judges, of course, join the un-credentialed Americans in supporting the 28th Amendment. So while the Constitutional debate framed by Citizens United on one hand and the Democracy For All Amendment on the other surely is worth having, we’d be better off leaving the insults in the faculty lounge.

The fact is, we are now in the midst of a historic national debate between two irreconcilable Constitutional values.  One approach is exemplified by Citizens United: elections and government are a “marketplace” where money is the currency, and anyone and anything (including corporations) can buy as much as they want or can afford.
 The other approach is exemplified by the Democracy For All Amendment: Elections and government are not a marketplace where money defines buying power but rather they are the expression of the American promise of equal citizenship, equal representation, and equal say in effective self-government.

One of these approaches will win and one of these will fail. Every American not only has a stake in the outcome, but a right to participate in the debate. That’s what the rapidly expanding Constitutional amendment drive is all about. And it is for real.