Chapter 5

Repairing Our Republic

How the People Can Overturn the Court

[Chief Justice] John Marshall has made his decision, now let him enforce it.

—President Andrew Jackson

Unelected judges have trampled our right to determine what corrupts and how we want to govern ourselves. They tell us we cannot give every voice equal time in public debate but that we are required to let a few billionaires drown out the rest of us. This issue goes beyond campaign contributions and spending; it is a question of sovereignty. Will we allow ourselves to be conquered from within by an elite group of billionaires and their judicial accomplices?

If not, what can we do?

This chapter will explore several ways to overturn a wrongheaded court ruling. Although all approaches have merit, organizing support for a constitutional amendment is our best opportunity, with the most permanent effect, to really get big money out of politics once and for all. The amendment fight could also build a citizens movement capable of winning a whole range of reforms to restore representative democracy to the United States. For example, the effort around the Equal Rights Amendment succeeded in building a movement that won more equal pay for women, more women in elected office (although still not enough), and women serving in the military even while failing (so far) to change the text in our Constitution.

But before settling on an amendment as one central approach, let’s examine all our options.

We Could Try to Change Their Minds

Like everyone, Supreme Court justices sometimes make mistakes. Sometimes they fix them. In fact, more than two hundred opinions of the Supreme Court have reversed previous rulings.131

It takes some intellectual courage to admit you were wrong. Chief Justice Roberts changed his mind about whether to issue a narrow or sweeping ruling in the Citizens United case. He could, theoretically, change it back.

In a 1992 case about abortion, Justice Kennedy initially wanted to overturn Roe v. Wade. However, while drafting the opinion, Kennedy changed his mind partly because he felt the Court would lose credibility if it didn’t respect its past opinions.

Kennedy’s flip-flop switched the vote from 5–4 to overturn Roe to 5–4 to sustain it. His concern about institutional credibility is a reminder that advocating for the Supreme Court to reverse itself may not be the best strategy for those who care about its reputation and who otherwise advocate for upholding precedent. Notably, Kennedy’s example and Justice Roberts’ change in Citizens United came prior to issuing the Court’s final opinion, suggesting that justices have some space to go back and forth until they declare a public position by joining an opinion or dissent. Once that occurs, it’s harder to switch.

Rare as it may be for justices to change their public positions, it happens. In 1968, Chief Justice Earl Warren voted for the Bruton v. United States ruling, overturning a previous ruling (Delli Paoli v. United States) he had supported in 1957.

But the fact is, Supreme Court members rarely even have the opportunity to reverse themselves. To change a precedent, the Court must consider a similar case and come to a different conclusion. Because legislators have limited time, they are reluctant to pass laws that are likely to be voided by the courts. Some legislators mistakenly believe it is improper to pass a law defying the Supreme Court—even if the legislator thinks the law is constitutional. It usually takes decades before an opportunity to reverse a past ruling presents itself to the Court. By then, the judges who issued the original opinion are gone.

Rather than forcing a member of the Supreme Court to admit he was wrong, reformers may have more luck presenting arguments that the Court hasn’t considered. This is why academics and lawyers put so much energy into inventing other “compelling” reasons for the Court to limit money in politics besides the reasons it has agreed to (a narrow form of corruption) and rejected (equality.) Although the new reasons (e.g., integrity of the electoral process) look and sound a lot like the old reasons repackaged in new bottles, they provide plausible rationale for a judge to issue a different ruling while saving face. It’s useful to give a judge a way out of an untenable spot, but saving face only becomes necessary if public distrust first weakens the moral authority of the court.

We Could Wait for New Justices—and Cross Our Fingers

As the Citizens United ruling demonstrated, when members of the Court are replaced by new members, it can change the vote count and in effect change our Constitution.

In Brown v. Board of Education, the Supreme Court reversed a previous opinion upholding racially separate but equal education. None of the justices who heard the original case in 1896 were even alive when the Court reversed itself in 1954.

The Brown opinion was surely the wise choice for our country, and it is often held up as a positive accomplishment of an “activist” court. Note, however, that while Brown did overrule state legislative and executive officials, the Court acted in response to a populist civil rights movement that could honestly claim to represent the majority will of the American people.

The Court also had the full support of the federal executive branch, which sent in federal troops to enforce the act. Congress, too, ratified the Court’s stance by passing major civil rights legislation in the 1960s. Moreover, the Court acted unanimously.

A 9–0 ruling that reverses distant precedent with the support of most Americans and all three branches of the federal government is substantially different, and more legitimate, than a 5–4 ruling reversing recent precedent and defying the clearly expressed will of the people, the Congress, and the president.

Voters have little direct involvement in this process of constitutional change through court turnover. Some citizens decide their votes for president partially on how a new president could impact the Court, but this is hardly foolproof. Justices John Paul Stevens and David Souter, appointed by Republican presidents Ford and George Bush Sr., were more liberal than many Republican voters wished. Likewise, some of the names on the short list of potential nominees reportedly considered by President Obama have written articles supporting the Citizens United and Buckley rulings.132

Waiting for a new lineup of justices feels a bit like rolling the dice with our Constitution. There’s a somewhat twisted game called ghoul pools or death pools where participants enter the names of famous people they predict will die in the coming year. At year’s end, whoever has the most correct guesses wins. In the same vein, Supreme Court watchers now guess which justice will retire, or die, during any president’s term. The meaning of our foundational document could change depending upon who has a heart attack—not exactly a thoughtful way to govern ourselves.

As the Supreme Court increasingly makes controversial policy decisions by 5–4 votes, confirmation battles in the Senate have become politicized. Each confirmation of a new justice becomes a vote on numerous and unspecified changes to our Constitution that will last a generation, if not longer. Senators try in vain to ascertain what a nominee really thinks so that they can understand what changes to the Constitution might arise from putting him or her on the Court. Judicial nominees duck specific answers, taking the power to change our Constitution and make policy out of the hands of elected senators and leaving it in the hands of judges with lifetime appointments but often little real-life experience.

Constitutional changes arising from new court personnel lack the authority of a formal amendment to the Constitution. Although they can have enormous impacts on any one generation of Americans, the changes are not as permanent.

If the current 5–4 composition of the Supreme Court changed overnight so that there was a 5–4 majority of members favoring limits on money in politics, we might have ten or twenty years of sane policy in this arena. But then, the majority could tilt back in the other direction just as suddenly.

Having our fundamental rules about self-government flip back and forth every few decades based upon the whimsy of whoever happens to sit on the Supreme Court is not a way to take our Constitution, or self-government, seriously. Americans should seek opportunities to encourage the Supreme Court to correct its own errors regarding money in politics, but we should cement those rulings through a formal amendment even if the Court temporarily comes to its senses.

We Could Pass a Constitutional Amendment

If “We the People” believe that a majority of Supreme Court members are misreading the Constitution, we can make the Constitution more explicit.


“Organizing support for a constitutional amendment is our best opportunity, with the most permanent effect, to really get big money out of politics once and for all.”


Although difficult to achieve, a constitutional amendment offers the most durable solution because it elicits the greatest chance for public engagement. Three-quarters of the states (currently thirty-eight) are needed to pass an amendment. But each state must approve the exact same words, so who drafts the proposal?

Article V of the Constitution provides for two methods of drafting. Two-thirds of both houses in Congress can propose the amendment through drafting, debating, and passing a joint resolution. This was the method used for all twenty-seven of the amendments enacted so far. State legislatures could also call a special convention of state delegates to draft an amendment, a method I’ll discuss in chapter 8.

Some lawyers—who by nature and training tend to elevate the importance of courts and judges relative to the importance of voters and legislators—profess that it is simply “too hard” to pass a constitutional amendment. It is indeed time-consuming, but so is waiting decades for the composition of the Court to change and then bringing a new case to the court.

What elites often mean when they say that the amendment process is “too hard” is that they would prefer to have well-educated lawyers and judges handle this rather than reminding ordinary people that we have the authority to overturn the Supreme Court.133 Both liberal and conservative elites wish to maintain the perceived “supremacy” of the Supreme Court in running the country in ways they find superior to what ordinary people can achieve. As one observer put it:

I suspect that some people think that a campaign finance amendment is a bad idea because they think the Supreme Court should be asked to overrule Buckley v. Valeo. There is nothing wrong with asking the Court to do what you want … [but] it strikes me as a bit peculiar to prefer doing that to finding out directly what the people want by seeking to amend the Constitution. Or, if not peculiar, at least rather openly antidemocratic.134

Former senator Russ Feingold, for instance, vehemently denounces the Citizens United ruling, which gutted the law bearing his name. Yet Feingold cannot bring himself to support a constitutional amendment to overturn it and in fact openly opposed such an amendment when he was in the Senate. At the end of the day, many elites don’t trust us to govern ourselves.

We Can Pick a Fight That Spurs a Constitutional Crisis

All people have a fundamental right to alter or abolish their government anytime they want. Our current Constitution provides a peaceful way to alter it through a formal amendment process as described in Article V.

But that doesn’t mean that an Article V process is the only way.

Sometimes, Americans have found creative ways to pick a fight with the status quo and win it so decisively that our foundational agreement about government changes.

Our current Constitution was born out of a crisis of our previous foundational agreement, the Articles of Confederation. The articles stated that they only could be amended by unanimous approval of all thirteen states, but our current Constitution didn’t follow that prescribed process—it only required ratification by nine of the thirteen. Nonetheless, even the opponents of the new Constitution had to concede that the people had spoken through a legitimate process, albeit one other than what the Articles of Confederation prescribed, and the new Constitution was deemed legitimate.135

Some scholars have argued that we in effect amend our Constitution in a more permanent and legitimate fashion when these changes come about as a result of a constitutional crisis rather than through simple court reversal. In the crisis, different branches of government adopt opposing views, which the voters then choose between in a national election.136 The national election becomes a way for the people to speak directly and resolve the crisis when one branch backs down in the face of overwhelming public support for the other branch.

Perhaps the best example of a constitutional crisis that changed constitutional understanding was Franklin Delano Roosevelt pushing the Supreme Court to a crisis over disagreements about the constitutionality of the New Deal.

We Could Pack the Court

Courts of the early twentieth century were as hostile to government regulation of the economy as the Roberts Court is to regulating money in politics. Judges began striking down rules for a more just economy in 1905 with a case known as Lochner v. New York, where the Supreme Court voided a law limiting the workweek to sixty hours. The Supreme Court then rejected law after law protecting economic fairness, arguing that this was beyond the scope of the government and violated the private right to contract.

In 1924, Congress reacted to the Lochner-era Supreme Court rulings by proposing a very limited constitutional amendment to allow for restrictions of child labor. But, prior to the Great Depression, public support for the measure was not yet sufficiently strong. By 1927, twenty-six state legislatures rejected the amendment while only five had ratified it.137 When the Massachusetts legislature issued a ballot asking voters if it should approve the amendment, an overwhelming majority opposed the idea.138

After the stock market crash of 1929, a new era was born. Fourteen legislatures ratified the child labor amendment in 1933 and another eight did so by 1937. Still, it wasn’t quite enough.

In 1935, the Supreme Court remained staunchly opposed to enforcing any rules in the marketplace. President Roosevelt had passed the National Industrial Recovery Act through Congress, a plan to rebuild the economy decimated by the Great Depression. The Supreme Court unanimously struck down the act just two months after it had been upheld by an appellate court. President Roosevelt declared the Court’s action as “more important than any decision probably since the Dred Scott case.”139 Many of today’s leaders are saying similar things about Citizens United.

President Roosevelt considered several responses to the Court, including a formal constitutional amendment to authorize the New Deal. Members of Congress had already proposed thirty-nine amendments along those lines.140 One idea to speed up the process was for an amendment to be ratified by state conventions, instead of state legislatures, that would all meet on a presidentially selected day. The special elections to select those convention members would serve as a national referendum on the New Deal amendment.

The president also considered a proposal by Senator Burton Wheeler to pass a constitutional amendment that would severely limit judicial review of laws. Senator Wheeler’s idea was that Congress could reenact any law voided by the Court and have it automatically be constitutional so long as the people had a chance to weigh in on the matter through an intervening congressional election. Had Roosevelt chosen this path, Congress could have reversed the Buckley v. Valeo decision in 1977 simply by reenacting the post-Watergate reforms.

However, Roosevelt felt that a formal amendment process would take too long to address the severe economic crisis that threatened the very stability and existence of the United States. That crisis led him to a more immediate plan. He would “pack” the Supreme Court by appointing additional justices who would uphold the New Deal. There was nothing illegal about the plan. An 1869 act of Congress had established the nine-justice level and Roosevelt correctly noted that Congress could change that number.

Some members of Roosevelt’s own party thought the court-packing plan was unseemly even if not illegal. Many were hesitant to support it.

But the Court blinked first.

Three weeks after Roosevelt introduced his legislation to increase the size of the Court, the Court switched its position on economic regulation, upholding a minimum wage law by a 5–4 ruling. In particular, Justice Owen Roberts (no relation to John Roberts) switched his vote from his previous opinions. Roberts’ sudden flip-flop has become known as the “switch in time that saved nine,” meaning the Court had backed away from the constitutional crisis by upholding the New Deal and in so doing preserved a nine-member court. Roosevelt lost the battle to pack the court but won the war to save the New Deal and restore the US economy.

It’s possible to view Owen Roberts’ flip-flop purely as a move by a self-interested institution to preserve its own power and reputation. The Court had just been repudiated by a national election that overwhelmingly elected candidates who campaigned against the Court’s rulings. But courts ever since have continued to uphold government rules to ensure fairness in the marketplace.

The Supreme Court’s “switch in time” was the moment when it recognized that the People had indeed spoken about this issue, in effect changing our Constitution. The People had not done this through a formal amendment to the Constitution but rather by speaking clearly through their votes to back the president during a constitutional crisis where he challenged the Court.

We Could Throw the Bums Out

Even without changing the number of justices, Congress could change the composition of the Court by removing a justice through impeachment. Congress has forced out a Supreme Court member before—Abe Fortas resigned in 1969 in order to prevent being impeached. Fortas had received $15,000 in speaking fees from American University—funds that originally came from private sources that may have had business before the Supreme Court. He also accepted $20,000 from a family foundation.

Abe Fortas’s ethical lapses pale in comparison to the ethical transgressions of current justice Clarence Thomas. For more than a decade, Thomas lied on federal forms that he signed under oath. Thomas said his wife, Ginni, had received no outside income when in fact she had received more than $700,000 from the Heritage Foundation. Ginni Thomas also benefitted financially from the Citizens United ruling because an organization she ran was allowed to accept unlimited corporate donations as a result, yet Justice Thomas did not recuse himself from that case.

In addition, Thomas appears to have accepted gifts and luxury travel from the Dallas developer Harlan Crow while aiding Crow in a charitable fund-raising project, which he failed to report.

In January 2008, the same month Citizens United released its movie critical of Hillary Clinton, Thomas appeared at secret political strategy sessions held by billionaires Charles and David Koch as well as at fund-raisers for the Federalist Society. These actions violate the judicial code of conduct, which means they would be grounds for removal for any federal judge—but not Supreme Court members, who do not feel bound by that code. Some members of Congress have reacted by introducing legislation that would require the Supreme Court to adhere to a code of ethics, but Congress has not passed the bill. Nor has the House moved to impeach Thomas.

Setting aside ethical problems, there is the more difficult question of whether a Supreme Court member could be removed simply because a majority of the House and two-thirds of the Senate strongly disagree with his or her interpretation of the Constitution.

The House of Representatives impeached Justice Samuel Chase in 1804, in large part for using the bench to advance his partisan political views. The Senate acquitted Chase because senators of both parties worried that removing a judge for partisan behavior would compromise the independence of the judiciary. But surely there must be some point where Congress might conclude that a member of the Court was no longer exhibiting good behavior—the constitutional standard for impeachment—based on their judicial actions.

Suppose that a single justice wrote a dissenting opinion that grossly misinterpreted constitutional principles, such as calling for the return of poll taxes. What would Congress do? Or suppose a judge rejected laws against bank robbery on the absurd grounds that money is speech and thieves are only helping the bank customers disseminate their political views? Would that be grounds for impeachment? What if five justices ruled a bank manager could take his customers’ money and spend it on things the customers didn’t authorize? How about a corporate CEO who used his shareholders’ money for political spending that the shareholders didn’t authorize? Some would say that the Citizens United ruling has allowed CEOs to do precisely that.

Have the Roberts Five crossed the line?

Some people think so and are ready to impeach the justices who signed the Citizens United opinion.141 Most Americans, however, are still uncomfortable impeaching judges purely for their ideology, even if it’s reactionary. But if a judge flatly ignored any new amendment to the Constitution, thereby violating the oath of office to support and defend the Constitution, that would likely be viewed as grounds for impeachment.

Political Disobedience: Congress and the President Could Defy the Court

Through civil disobedience, Americans have occasionally broken the law in order to protest a fundamental injustice. During the civil rights movement, black Americans were arrested for eating at white-only lunch counters, for instance. Suppose entire branches of government took this approach?

If a majority of voters demand it, the legislative and executive branches could pass and enforce a law to limit big money in political campaigns over the objections of the Supreme Court. Indeed, while campaigning for president in 2012, Newt Gingrich said that if elected he would ignore Supreme Court rulings he disagreed with in some circumstances.142Several 2016 Republican presidential candidates vowed similar defiance of the Supreme Court’s ruling on gay marriage, although they were also defying a majority of Americans with this position.

Judges must sentence those who violate our laws, and this is where a defiance strategy would play out. A lower court would need to sentence a person convicted of violating any campaign spending limit, providing an opportunity to test the US Supreme Court by sending a new case up for appeal. If the Court found the law unconstitutional and the executive branch punished violators anyhow, some members of Congress would try to impeach the president for defying the Court and the battle lines would be drawn. That impeachment process would present a constitutional crisis that allowed the people to speak on the matter. If the president withstood impeachment, the Court would be repudiated.

I am not suggesting that individuals should be free to disobey any law they disagree with. Rather, our Framers intended all three branches of government to act according to their own independent judgment of both the law and the Constitution, even if it means defying other branches. When backed by a majority of Americans, institutional defiance is not an assault on the rule of law, it is an attempt to abide by the law. The only question is who should make the law, judges or legislators.

Others have suggested that Congress could neuter the Court with the exceptions clause, Article III, Section 2 of the Constitution, which says that “the Supreme Court shall have appellate jurisdiction … with such exceptions, and under such regulations as the Congress shall make.” Congress could pass a law limiting money in politics with a provision excluding Supreme Court jurisdiction to review it.143 Former congressman Ron Paul had actually introduced legislation to strip federal courts of jurisdiction in other core First Amendment areas.144 Remember that judicial review is not stipulated in the Constitution. Rather it was a practice later asserted by the courts, which has since become widely accepted.

States Could Defy Federal Courts

Several states have recently defied federal law by legalizing marijuana for medical or recreational use. These states have put the president in the position of choosing to enforce the federal ban on marijuana sales or back down and defer to the states. States could take a similar approach to money in politics.

At first glance, states have a strong argument for passing laws limiting campaign spending in open defiance of federal courts. The First Amendment makes no mention of the states, saying only that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press …” (emphasis added)

When Congress passed the Sedition Act in 1798, which clearly violated the First Amendment by prohibiting speech that defamed the president, Thomas Jefferson and others who opposed the law did not go to the Supreme Court. First of all, that Court was appointed by federalists who supported all four of the Alien and Sedition Acts. Furthermore, the idea that the Supreme Court could declare laws unconstitutional was not yet established. Instead, Jefferson took to the states. He drafted resolutions for the Kentucky and Virginia legislatures that declared the federal law unconstitutional, null, and void.

Jefferson’s Kentucky resolution specifically spoke to the question of state versus federal role in determining free speech rules:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom.145

Jefferson clearly thought states could abridge free speech. He explicitly said so years later in a letter to Abigail Adams: “While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so.”146

Although there is no reason to believe that Jefferson or other Founders believed money was speech, even if they had, the Kentucky resolution makes clear that the states could actually limit speech, and therefore certainly limit campaign spending, even if the federal government could not.

Perhaps Jefferson was wrong in his contention that the states could abridge political speech. Article IV of the Constitution guarantees a “republican form of government.” Federal courts could use that guarantee to insist on freedom of speech and press within the states in order to allow people to govern themselves.147

Moreover, most legal scholars believe that even if the First Amendment did not apply to states at the time of our founding, it did after the Civil War. The passage of the Fourteenth Amendment, which guaranteed equal protection to everyone (including former slaves), “incorporated” many federal rights to every state and explicitly restricted state power. However, there is not a legal consensus on exactly how far such incorporation goes. To the extent that the Fourteenth Amendment does incorporate the First Amendment, it elevates political equality as a reason to do so. State limits on campaign spending that advance a republican form of government and political equality are consistent with every word in our Constitution.

In contrast, the highly imaginative Roberts Court interpretation of the Constitution forbidding state limits on campaign spending goes something like this: 1) Our constitutional Framers thought unlimited campaign spending was free speech when they passed the First Amendment and 2) the Congress that drafted the Fourteenth Amendment to protect former slaves meant to force that bizarre “money as speech” interpretation upon state governments in order to protect the rights of rich plantation owners to unduly influence elections.

Really?

At the very least, given that federal judges do not agree among themselves on whether political advertising is free speech, you might think that self-proclaimed “judicially modest” federal judges would defer to state judges, state legislators, and even more so to the people acting directly through ballot initiatives and allow states to limit campaign money.

You would be wrong.

Montana Takes a Stand

In 1912, the people of Montana passed a voter initiative to ban corporate treasury funds from bankrolling state candidate campaigns. This law worked well until 2012.

Even after the Citizens United ruling, Steve Bullock, the Montana attorney general at the time, concluded he had a duty to uphold Montana’s law consistent with how he viewed both the Montana and US constitutions. Bullock enforced the law, in brazen defiance of the US Supreme Court.

The big money group American Tradition Partnership sued. The case went up to the Montana Supreme Court, which upheld the state law in no uncertain terms by a vote of 7–2. Even the two dissenting judges agreed that the Montana law was constitutional but thought that a state court should not defy the US Supreme Court by acting contrary to the Citizens United ruling.

In its opinion, the Montana Supreme Court listed considerable evidence going back a hundred years about how corporate money had corrupted Montana politics.

But the US Supreme Court wasn’t interested in evidence. It reversed the Montana Supreme Court without even holding a hearing. The Roberts Court had decided that corporate money could not ever be corrupting, period.

All evidence be damned.

At this point, Attorney General Bullock folded his tent and stopped enforcing the law.

But, suppose he hadn’t? What happens when a state executive branch defies the federal judiciary? A constitutional crisis, that’s what.

Former slave states thumbed their nose at the Fourteenth Amendment and any federal attempt to enforce equal rights for African Americans for nearly a century after federal troops withdrew from the South in 1877. The states made a mockery of our Constitution. It took nearly eighty years of Jim Crow discrimination before the federal government would attempt to enforce the Fourteenth Amendment.

After the Brown v. Board of Education Supreme Court ruling of 1954 to desegregate schools, the governor of Arkansas openly defied the Court. Against the wishes of the superintendent of schools and mayor of Little Rock, Governor Orval Faubus sent the Arkansas National Guard to physically block black students from attending a white school in Little Rock. President Dwight Eisenhower sent in federal troops, which took over the Arkansas National Guard. The federal executive branch enforced the federal court’s order to resolve the constitutional crisis.

Now, suppose the president, the local citizens, the Congress, the state governor, the state legislature, and even the state and federal troops all agreed that a state attorney general who was enforcing a commonsense limit on corporations buying elections was upholding the Constitution.

Would President Obama really have sent in federal troops to prevent the Montana attorney general from enforcing a popular Montana law that had worked well for a hundred years? We will never know, as neither Steve Bullock nor Barack Obama chose to risk his political career forcing such a constitutional crisis.

But that doesn’t mean some state or federal official won’t in the future. What commander in chief will enforce a Court doctrine that campaign spending is free speech when the vast majority of Americans believe otherwise? If racists can ignore the Supreme Court and federal rights for nearly a century after Reconstruction, what is to prevent others with more virtuous intent? It turns out, it’s happened—more than 150 years ago in Wisconsin.

In 1854, the Wisconsin Supreme Court refused to convict Sherman Booth, a newspaper editor who had encouraged a crowd to free an escaped slave from jail. Federal marshals had captured the slave, Joshua Glover, under the federal Fugitive Slave Act. The Wisconsin court not only released Booth, it declared the federal law unconstitutional.148 To this day, the Wisconsin Supreme Court has refused to recognize the US Supreme Court’s ruling upholding that law. Booth, meanwhile, was pardoned by President James Buchanan after federal courts convicted him. That’s what can happen if you defy the Supreme Court but abide by the will of the people and the true spirit of our Constitution.

Work-Arounds

When computer programmers encounter a bug that has corrupted a program, they often devise what’s called a work-around to make the program function even without fixing the actual bug or virus. Similarly, we could pass policies that will help reduce the effects of Citizens United and Buckley v. Valeo. For most of the 1980s and 1990s, this was how reformers proceeded—occasionally with some success.

State and federal laws have improved disclosure of money given to candidates and parties, although some of the big money then found dark places to hide in so-called 527 groups and other nonprofits.

Several states, notably Maine, Arizona, and Connecticut, have passed laws to provide public funds to candidates who demonstrate grassroots support. New York, Los Angeles, and other major cities have boosted the role of small donors by providing significant matching funds from public sources to candidates who accept limits on their contributions and spending. This has allowed candidates who do not cater to wealthy interests to run for office, and sometimes to win, even in the face of big money opposition.

An updated version of these laws, called anticorruption acts much like those a century ago, are now in circulation at the state and local level. Cities like Tallahassee have passed measures combining modest amounts of public financing with ethics measures. Harvard professor Lawrence Lessig launched a campaign for president around such a proposal.

Congress could require broadcasters that use the federal airwaves—which are public property—to make time available for free to candidates or political parties. Free airtime has been introduced in Congress for decades, only to be crushed by the broadcaster lobby. TV and radio stations, you see, make a tidy profit off all the political ads they sell.

Even if we can’t yet beat the broadcasters, state and local election officials could publish digital voters’ guides that provide every candidate for office the opportunity to make online videos available for voters to stream on their smart-phone or computer whenever they wanted. These voters’ guides would provide a level playing field, with each candidate getting the same number of videos, limited to the same amount of time. These guides could also link to debate footage, lists of endorsements, the candidates’ own websites, and detailed data on campaign contributors supporting the candidate. It could be a one-stop shop for voters seeking information that would be superior to the paid speech we are getting in thirty-second attack ads on TV.

These work-arounds are important reforms that we should implement even if we are able to establish limits on big money in politics. Even with such limits in place, there will still be people’s voices we need to hear.

Working to pass reforms such as these could lead us to a more diverse Congress, one more willing to stand up to big money in politics and pass a constitutional amendment that limits campaign contributions and spending. Likewise, organizing for a constitutional amendment helps build a citizens movement that can also press for these supplemental measures as short-term victories along the way. Support for an amendment is no excuse for failing to take other steps, but neither are these measures a reason not to also demand an amendment to overturn one of the worst rulings in Supreme Court history.


What you can do: Demand answers

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Ask every candidate for the US Senate whether they will block the nomination of any nominee to the federal courts who will not publicly state that unlimited campaign spending is not free speech.


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