The Fight To Overturn Citizens United: What Happens Now?

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<p>Supporters of campaign finance reform protest outside the United States Capitol.</p>

Supporters of campaign finance reform protest outside the United States Capitol.

Photo by Win McNamee / Getty Images

The 2016 election was a stunning blow to the movement to get big money out of politics. At worst, a Hillary Clinton presidency would have meant a new Supreme Court justice who would vote to overturn Citizens United—the decision that allowed corporations and unions to spend unlimited amounts of money to influence elections. At best, it could have meant a president supporting a constitutional amendment to do even more. The question wasn’t when we would reform our dysfunctional campaign finance system, but how.

After the results of Nov. 8, however, the goal of getting big money out of politics seems less attainable than ever. With President-elect Trump and a Republican Congress, our chances of passing federal campaign finance reform in 2016 went from decent to nearly impossible. So what does a wounded movement do now?

A Constitutional Amendment Becomes Essential

Even before the 2016 election, I argued that a constitutional amendment to get big money out of politics was preferable to waiting for a re-balanced Supreme Court to do the job for us. Though a court reversal of Citizens United was the more likely outcome, leaving our campaign finance laws in the hands of nine unelected judges had its pitfalls. An amendment offered a permanent solution and the promise of guaranteed reforms, though it would be more difficult to achieve. That made the debate of the Supreme Court path vs. the amendment path worthy of discussion. But that debate doesn’t matter anymore.

The 2016 election made the choice for us. Trump’s inevitable Supreme Court nominee will give the court a conservative tilt for the foreseeable future. So, not only is a reversal of Citizens United and other problematic decisions unlikely, but new decisions that give even greater influence to corporations, unions, and ultra-wealthy individuals are probably on their way. A constitutional amendment just became our best option for getting big money out of politics at the federal level. For that to happen, the movement to support an amendment must become more focused and organized than ever before.

The State of the Movement

Since Citizens United was handed down in 2010, the growing movement for a 28th amendment to overturn the decision has been both fractured and fanciful. Members of Congress and various organizations have already put forth more than a dozen amendment proposals, but most of them fall into one of two undesirable categories: so weak that they don’t actually overturn Citizens United or so extreme that they don’t stand a realistic chance of success. Worse, the glut of amendment proposals has hurt the movement as a whole by creating division among what would ideally be a unified group of activists.

State ballot initiatives and vague constitutional convention calls have also confused supporters of the cause. Many people think Citizens United was already reversed by ballot initiatives like recently passed Prop 59 in California or I-735 in Washington that urged legislators to overturn the decision. So far 17 states have passed such initiatives but those “successes” are non-binding so they amount to little more than polite requests that our elected officials give it the old college try.

Others believe that we are well on our way to a constitutional convention to pass a 28th amendment because an organization called Wolf Pac has gotten five state legislatures to make the convention call. But those convention calls don’t actually support any concrete amendment proposal and a convention based on Wolf Pac’s vague language could result in many outcomes, good and bad. To make matters worse, by using different language in different states, there is reason to believe those state legislatures have actually called for four separate conventions rather than building momentum for the single convention they want. As a result of so many different proposals and plans, the movement for a 28th amendment is not much further along in 2016 than it was in 2010. The good news is that cohesion is within sight.

Uniting Behind the Best Amendment Proposal

Citizens Take Action has recently introduced a proposal called the Restore Democracy Amendment along with a comprehensive plan to move it from conception to ratification. The amendment would overturn Citizens United, drastically diminish the power of Super PACs, and because it goes after big money from both corporations and unions, it has bipartisan appeal that other proposals lack. Whether it comes from Congress or the states, any amendment must ultimately be ratified by 38 state legislatures. That means a proposal is dead in the water if it can’t draw support from both Democrats and Republicans.

More importantly, by simultaneously seeking supporters through Congress and clear state convention calls, Citizens Take Action’s plan provides the best opportunity for a truly unified movement. The composition of Congress will likely prevent the amendment from passing in the next session. However, there is still value in lining up supporters and identifying opponents now because that will help us clear the path for the amendment’s future success.

Going After Opponents

The groups working to get big money out of politics may not agree on the same amendment language or approach, but they can all agree that we must have widespread support from elected officials in order to make the amendment a reality. By identifying representatives who oppose the amendment now, we can target vulnerable opponents in the midterm elections and make sure their constituents know who is standing in the way of draining the swamp.

Over 70 percent of both Republicans and Democrats support overturning Citizens United so in theory, any elected official who doesn’t should be vulnerable to a worthy challenger. The sooner we put pressure on our representatives through calls and letters, the sooner we can either get them on board with the Restore Democracy Amendment or begin supporting their potential replacements.

Committing to “The Impossible”

Many prominent legal scholars think that passing a constitutional amendment to overturn Citizens United is impossible and they may be right. But whether they’re right or wrong, it’s critical for us to find out.

If they’re wrong and enough passionate Americans can successfully mobilize and persuade our elected officials to support a 28th amendment, then we need to know that. Constitutional amendments are a powerful tool that every generation except ours has utilized. If we can successfully pass an amendment then not only can we overturn Citizens United, but we can abolish the electoral college, establish Congressional term limits, and do any number of other things that are supported by most Americans, but not by politicians.

But if those skeptical scholars are right and an amendment is impossible, we need to know that too. Because if our political system is so broken that we can’t pass an amendment the vast majority of Americans want, or if we are so apathetic that we can’t put down our phones long enough to make it happen, then we’ve got much bigger problems than Citizens United. Maybe instead of one new amendment what we actually need is a brand new constitution. Maybe this country is just too damn big and secession of some states isn’t as crazy as it sounds. Committing to the impossible is the only way to find out what’s actually possible.

So, though the 2016 election was a major setback to the movement to get big money out of politics, by limiting our options it may have a galvanizing effect. A constitutional amendment is the only way to overturn Citizens United once and for all. Now it’s our job to make it happen.

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