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The movement to change the Constitution in response to the Supreme Court’s decision in the Citizens United case is gaining momentum in Vermont, where about 40 municipalities will vote on whether to urge adoption of a constitutional amendment.
It is an important movement, fueled by revulsion at the flood of money sweeping over the campaigns this year. But the push for an amendment is mostly symbolic because there is little likelihood that an amendment would actually pass and good arguments why the amendment process is not the best way to address the issue.
Supporters of the amendment have seized on the notion advanced by a majority of the Supreme Court equating money with speech and corporations with individual people. They argue that money is not speech — it is property — and corporations are legal constructs defined by law for public purposes. Any corporate officer has the free-speech right to stand on a soapbox and speak his or her mind. But using corporate money to overwhelm the political system endangers the rights of individuals to participate actively in the electoral process.
The election this year may become a case study in the foolishness of the Citizens United decision. Already wealthy individuals and corporations, unleashed by Citizens United, are contributing unregulated millions of dollars into super PACs supporting the candidates. These super PACs are not supposed to be affiliated with the candidates, though they are often run by supporters who had previously been important campaign staffers.
They have had their effect. When Newt Gingrich made a late surge in Iowa, a barrage of negative ads by a super PAC supporting Mitt Romney blunted Gingrich’s progress. After Romney won in New Hampshire, a super PAC supporting Gingrich received a $5 million check from a billionaire gambling tycoon, helping Gingrich win in South Carolina. The tycoon’s wife soon donated another $5 million. But Romney’s super PAC was able to carpet-bomb Florida with ads attacking Gingrich, and Romney won big there.
What Citizens United has done, it appears, is to turn elections into contests among billionaires. It may be argued that people are still free to decide which ads to believe and to make up their own minds. But the power of advertising to shape opinion is well known, and it is impossible to escape the conclusion that the system is being manipulated by big money.
Supreme Court Justice Stephen Breyer was in the minority on Citizens United. He has argued that in a democracy there are competing values, including the freedom of speech and the right to participate in the democratic process through free and fair elections. He refers to those freedoms by which citizens actively involve themselves in the process as “active liberty,” and it is a freedom that may be undermined, in the name of free speech, if the money of a few dominates the process.
And yet amending the Constitution in response to a single court decision is not a sound practice. In fact, the amendment process is difficult in order to prevent the Constitution from becoming a political document, with paragraphs added and excised as people respond to changing events.
Voting for the amendment at town meeting is a worthwhile message to send because one way to effect lasting change is to keep the focus on the corrupting processes that the court’s decision has unleashed. Many of the conservative justices may be happy to sit back smugly and watch the billionaires fight it out, saying to themselves that is democracy in action. But if one justice has second thoughts, appalled at the way his decision has harmed politics in the real world, he could lead the way to a reversal.
There have been several disgraceful Supreme Court rulings over its history that were eventually overturned, such as Dred Scott and Plessy v. Ferguson, and there have been other disgraceful rulings not yet overturned, such as Bush v. Gore and Citizens United. Public clamor and continuing attention to the corrupting influence of big money may be a surer remedy than an amendment, even if the push for an amendment is part of the clamor.MORE IN Editorials & OpinionThe news of the retirement of state archivist Gregory Sanford marks the end of an era in state... Full StoryElection year 2012 is shaping up as a lively contest of ideas at both national and state levels. Full StoryMitt Romney and House Speaker John Boehner appear to believe that the best way to defeat... Full Story -
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