Chapter 7

Instructions for Mission Impossible

How to Pass a Constitutional Amendment When Incumbents Don’t Want One

First they ignore you, then they ridicule you, then they fight you, then you win.

—Attributed to Mahatma Gandhi

It’s one thing to amend the Constitution with something that both the public and incumbent legislators want. The Twenty-sixth Amendment, which lowered the voting age to eighteen, took only five months to pass Congress and be ratified by the states.

It’s different when incumbents fear an amendment goes against their personal interests. For example, the Twenty-seventh Amendment, which prohibits a current session of Congress from raising its own pay, took 203 years from proposal to ratification.

Our mission, should we choose to accept it, is to force incumbents to do something they ordinarily wouldn’t do. Our history can tell us how.

Incumbents weren’t sure what would happen if they expanded the electorate by allowing women to vote. When Alice Paul got tired of waiting for Congress to act, she organized a picket outside of Woodrow Wilson’s White House in 1917. Police arrested the protesters for “obstructing traffic” even though they had stayed on the sidewalk. In prison, wardens placed Alice Paul in solitary confinement. She organized a hunger strike and galvanized public support for the prisoners, who became known as the “iron-jawed angels” for refusing to be force-fed. Paul’s actions elevated the issue to a national crisis and President Wilson finally came off the fence and publicly supported women’s suffrage. A year later, Congress would propose the Nineteenth Amendment.

In normal times, the American public largely delegates the task of governing to our elected representatives and appointed officials. We depend on the separation of powers among the three branches of government, at both the state and federal level, to keep any one branch from becoming too powerful and straying too far from the wishes of the people.

But in extraordinary times, the People directly engage in our government. It is at these relatively infrequent moments that we change our Constitution.¹⁶³ With our busy lives, it takes a crisis to justify dropping our private concerns to focus on our government. We tend to brush aside a problem until it grows too large to ignore.

When a few activists first call for a solution, they are initially ridiculed because the problem seems too large to solve. Only when a groundswell of citizens are well along the process do opponents really engage in the debate as they begin to worry that reform might actually pass.

Once the battle is underway, victory is not far off.

Here’s how that process worked with the Seventeenth Amendment, which radically changed how incumbent US senators were put in office.

Admit the Emperor Wears No Clothes

The first step in overthrowing any tyrannical regime is for a small group of courageous souls to proclaim what everyone knows but nobody dares say, namely that the current government lacks legitimacy to run the country.

That’s an uncomfortable thought. It is easier to ignore it than to speak it out loud, especially for citizens of the same political party as the emperor. Nevertheless, the small group must grow to a supermajority of citizens who demand change. And that’s what occurred in the years leading up to passage of the Seventeenth Amendment.

The Constitution originally called for state legislatures to appoint US senators. Calls to allow voters to directly elect senators began as early as 1826 in the House of Representatives. After the Civil War, President Andrew Johnson elevated the idea and declared that the case for direct election was so clear as to require no explanation.¹⁶⁴

The problem had been identified, but we weren’t ready to solve it.

First They Ignore You, Then They Ridicule You, and Only Then Do They Fight You

Until just before the turn of the twentieth century, the idea for direct election of US senators still drew little public attention. Before then, members of the House introduced constitutional amendments to provide for direct election of senators, but they went nowhere. Other issues such as slavery, settling the West, and growing the economy demanded the people’s attention.

Once direct election gained traction with the public, opponents did their best to dismiss any solution as unachievable “pie in the sky.”

As late as 1905, just seven years before the Seventeenth Amendment would pass Congress, major US newspapers dismissed the viability of direct election of senators. “We do not believe that it is possible for a long time to secure the adoption of the Amendment,” said the Wall Street Journal.¹⁶⁵ The Los Angeles Times cynically predicted “the Senate will never willingly allow such an amendment”¹⁶⁶ and scoffed, “It cannot be said, with truth, that any material progress toward a realization of the proposed amendment has been made.”¹⁶⁷

So, you should take heart if you see a skeptical comment in today’s Los Angeles Times about efforts to reverse Citizens United—it very well could mean we are only a few years away from success.

By the 1890s, Senate scandals and vacancies caused by gridlocked (and corrupt) state legislatures made the issue impossible to dismiss. Senators publicly denounced the idea of direct election, suggesting that the Senate would cease to be a deliberative body if its members had to explain themselves to voters and that “men of wisdom” would not be willing to serve if they had to go to the bother of running for office.¹⁶⁸

Building State and Local Resolve

When movements are not yet strong enough to force a federal debate on an issue, activists build momentum by organizing locally. While direct election languished in Congress for decades, it gained traction in the states. California passed the first “memorial” to Congress on the issue in 1874. Wisconsin and Illinois passed resolutions supporting direct election in 1891. By 1900, thirty-three states were on record supporting the idea and a national conversation had begun.

The use of legislative resolutions to advance a national cause dates back to the colonies, which passed resolutions denouncing acts of King George in their colonial assemblies. The Declaration and Resolves of the First Continental Congress, which came two years before the Declaration of Independence, listed a set of grievances with the king. Although not legally binding, it threatened a boycott of British goods. Ten years earlier, Patrick Henry’s nonbinding Stamp Act Resolutions in Virginia had established the concept that taxation was only justified if voters could elect representatives to decide how to spend taxes.

The Forgotten Practice of Voter Instructions

But sometimes voters don’t want to rely only on their elected representatives to speak on their behalf through resolutions. They want to speak directly, not just as individuals but as the entire electorate—the People. It has been generations since Americans really thought about what it means for voters to collectively tell our elected representatives precisely how we want them to represent us. But it played a central role in passing the Seventeenth Amendment.

Constituent instructions began in England and were used by nearly all of the early American colonies prior to independence. Colonists gathered in town meetings to not only elect representatives to legislative assemblies but to specifically instruct those representatives on certain positions to take on their behalf.

Quite different from the direct democracy practiced today in twenty-four states through the initiative process, whereby citizens enact laws themselves and completely bypass legislators, the instructions process embraces the republican form of government. Instructions give elected officials clear directives on how we want them to represent us but leave the details up for our representatives to debate and finalize.

This preamble to instructions from Boston residents to their representatives in 1764 explains the idea:

We, the freeholders of the town, have delegated you the power of acting in our public concerns, in general as your prudence shall direct you, reserving to ourselves the constitutional right of expressing our minds and giving you such instructions upon important subjects as at any time we may judge proper.¹⁶⁹ (emphasis added)

Most of the delegates at the first Continental Congress of 1774 were under instructions from their respective states. After hostilities broke out with England, at least nine of the thirteen colonies responded by instructing their delegates to the Continental Congress to declare independence.

Constituent instructions guided the drafting of the Articles of Confederation and the subsequent drafting and ratification of the US Constitution.¹⁷⁰ Contrary to claims that the Philadelphia Convention was a runaway constitutional convention, most delegates there were under instructions that authorized them to completely abandon the Articles of Confederation and start anew. They followed them.

In the early days of Congress, instructions from Maryland, North Carolina, South Carolina, and Virginia prodded the US Senate to conduct its meetings in public.

The Framers of our Constitution specifically mentioned the use of instructions, also known as “enjoining” a representative, as a means of amending the Constitution. John Dickinson of Delaware, one of our Founding Fathers, explained:

It may perhaps be advisable, for every state, as it sees occasion, to form with the utmost deliberation, drafts of alterations respectively required by them, and to enjoin their representatives, to employ every proper method to obtain a ratification.¹⁷¹ (emphasis added)

As Dickinson predicted, early Americans soon used constituent instructions to prompt a constitutional amendment that reversed a Supreme Court decision they felt overstepped its bounds. Just weeks after the 1793 Chisholm v. Georgia decision, which ruled on a dispute between private citizens and the states, legislators in Connecticut, Massachusetts, North Carolina, and Virginia instructed their US senators to seek passage of a constitutional amendment to deny federal courts jurisdiction in such cases. Congress complied with these instructions and proposed the Eleventh Amendment, which the states soon ratified.

The Twelfth Amendment, dealing with presidential and vice presidential elections, was also prompted by instructions from Massachusetts, New Hampshire, New York, and Vermont.

The Morally Binding Power of Instructions

There has always been debate as to what extent legislators must follow their instructions. Voters cannot take a legislator to court for failing to follow instructions just as an employer cannot sue a disobedient employee. But just as your boss can fire you for not doing your job, voters can enforce instructions through removing legislators who refuse to represent them.

If instructions violate a legislator’s personal views, the honorable response is to resign and allow someone else to honestly represent the views of the people. Two men who later became president, John Quincy Adams and John Tyler, did just that, resigning their seats in the US Senate rather than either follow or disobey instructions from their states.¹⁷²

“Just as your boss can fire you for not doing your job, voters can enforce instructions through removing legislators who refuse to represent them.”

Although not legally enforceable, instructions have historically proven to be morally binding. In 1883, the New York legislature placed an instructions measure on the ballot about prison labor. Citizens voted 408,402 in favor of abolishing it and 269,377 against. Rather than debating the merits of the question, the New York Times (which opposed abolishing prison labor) ridiculed the instruction measure, saying, “The vote will have no direct practical effect. It will be merely an expression of popular opinion, which may or may not hereafter be acted upon by the legislature.”¹⁷³ Contrary to the newspaper’s assertion, the vote had a great practical effect and the legislature did act upon the directions of the people.¹⁷⁴

California’s Constitutional Right to Instruct

Although most early states used the instructions process, eleven states saw it so fundamental to self-government that they included the right to instruct legislators, above and beyond the freedom to petition, in their state constitutions.¹⁷⁵

The concept still carried weight in 1849, when California first adopted its constitution with the provision:

The people shall have the right freely to assemble together, to consult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances.¹⁷⁶ (emphasis added)

The right to instruct was specifically added after a delegate complained that the right to petition was insufficient and that it wrongly implied that the legislature was in charge of the people, instead of the people being sovereign.¹⁷⁷ In debating whether legislators were bound to follow instructions, a delegate clarified the understanding:

The people have a right to instruct their representatives, and the representative has a right to refuse to obey those instructions. Both have rights. But if the representative cannot conscientiously obey those instructions, he should resign. I regard him as a mere machine, so far as he is instructed, or so far as the wishes of his constituents are known to him.¹⁷⁸

Both citizens and representatives viewed individual petitions as merely “advisory” but gave greater moral authority to instructions from the entire electorate. As one elected delegate to the 1879 California constitutional convention put it, “I recognize the right of electors to petition their servants, and further, the right to instruct; and when a majority instructs a public servant it is his duty to obey or resign.”¹⁷⁹(emphasis added)

Although the citizen initiative process had not yet been adopted in California, people expected the legislature to place questions on the ballot giving them the chance to instruct both their state and federal representatives. Indeed, in December 1877, the legislature placed an instructions measure on the ballot, just four months prior to calling a convention to revise the state constitution. Californians didn’t vote on the measure until September 3, 1879—a few months after they had approved a new constitution, which maintained the right to instruct.

As we will see in chapter 8, all this history was forgotten 140 years later when big money interests would challenge the California legislature’s decision to ask voters for instructions about overturning Citizens United. But in the late nineteenth century, instructions were still routine.

Voter Instructions and the Seventeenth Amendment

In 1891, the California legislature placed a voter instruction measure on the ballot asking whether US senators should be directly elected. It passed overwhelmingly with 187,987 votes in favor and 13,342 against. This was the first instruction of its kind on the direct election of senators issue and it paved the way for a more powerful measure in Oregon.

In 1901, the Oregon legislature passed a law that in effect allowed Oregon voters to directly elect their own US senators. It called for a nonbinding “straw poll” on the state ballot and for both houses of the legislature to appoint whoever won the popular vote to the Senate. This first measure failed when legislators split their votes among fourteen different candidates instead of following the straw poll.¹⁸⁰

In 1907, voters in Oregon used an initiative measure to directly instruct Congress to support direct election of US senators, but also to strengthen Oregon’s straw poll process. Any legislator who did not vote to appoint the winner of the straw poll to the US Senate had a notice stating their disobedience placed under their name on their next reelection ballot. It worked. In 1909 the Oregon legislature, which was controlled by Republicans, sent a Democrat to the US Senate after he received the most popular votes, just as Oregonians had instructed.

Other states adopted Oregon’s model.

In addition, many southern states had adopted primary elections where voters were allowed to specify their choice for senator. By 1908, twenty-eight of the forty-five states used some form of direct election to choose US Senate candidates who were then “ratified” by the state legislature.¹⁸¹ A majority of the US Senate no longer feared direct election because they were already used to winning the votes of their constituents.

Changing the Electoral Calculus

The 1906 publication of muckraker David Graham Phillips’ “Treason of the Senate” series elevated Senate elections into a national political issue that candidates needed to take a stand on. State governors joined the bandwagon and President William Howard Taft expressed support for direct election during his 1908 campaign.

The combination of overwhelming public engagement, national visibility in the news media, and a new mechanism to effectively elect senators led to an electoral upheaval. In 1910, ten senators who opposed direct election were defeated.¹⁸²

Suddenly a senator’s electoral calculus changed—he was more likely to stay in office by supporting direct election than by opposing it.

The States Force a Constitutional Crisis

Beyond the electoral tidal wave, state legislatures had forced a constitutional crisis that threatened to enact a Seventeenth Amendment through bypassing the US Senate altogether.

The Framers of our Constitution realized that Congress could have an institutional opposition to any amendment aimed at reforming itself. For this reason, Article V of our Constitution provides that state legislatures may pass an amendment without relying on Congress. Two-thirds of the states can apply for a convention, which then can draft an amendment if Congress refuses to do so.

Either way, three-quarters of states still need to ratify any proposed amendment.

Back in California, a year after its citizens had overwhelming instructed them to support direct election of senators, California legislators became the first to apply for a convention of the states to propose an amendment for direct election. By January of 1911, twenty-nine states had called for a national convention, just two states short of the two-thirds needed to convene delegates.¹⁸³

In the end, the Senate concluded it would rather draft an amendment itself than leave it up to a convention of the states.

Senators first crafted amendments for direct election that contained various “poison pills” that they knew would ensure the amendment’s defeat. This tactic survives to this day as a way to force a measure’s supporters to kill it by attaching other policies that they oppose. One poison pill would have increased the size of the Senate, but the most effective would have allowed the federal government to oversee Senate elections. Southern senators who supported direct election did not want the federal government involved in their elections out of fear it would strike down poll taxes and other Jim Crow laws that prevented former slaves from voting.

Once opponents resort to the poison-pill stage of the fight, they have in effect surrendered the moral high ground and are simply delaying an inevitable victory of the movement. After two years of wrangling, a clean Seventeenth Amendment was proposed by Congress and ratified by the states.

These, then, are the historical tools we can use to limit big money in politics: resolutions to voice public opinion about the issue, voter instructions followed by electoral accountability that changes the calculus of getting elected, and finding a way to force a constitutional crisis that threatens to take the issue out of the hands of Congress or the Court if either refuses to act.

What you can do: Local instructions

Ask your city councilor to place a measure on your local ballot that instructs all elected officials to support a constitutional amendment that would overturn Citizens United. See appendix II for an example from Los Angeles.