Chapter 8

Halfway Home

We’re Further Along Than You Think

The darkest hour is just before dawn.

—English proverb

It can be discouraging to realize that it often takes decades to overturn the Supreme Court. The good news, which we have forgotten to celebrate, is that we are already forty years into that struggle.

The first stage in repairing our Constitution from the damage of Buckley and Citizens United is for the American people to rouse ourselves out of the slumber of normal politics and enter a phase of extraordinary political engagement. Once we have corrected the structural flaws big money has wrought, we’ll be able to get back to our private lives.

This first step—raising awareness—is the most time-consuming part of the amendment process. Thankfully, we are fairly well into this stage. Due in part to campaign disclosure laws, the media’s muckraking, and follow-the-money groups that regularly churn out data linking campaign donations to particular issues, the American public is thoroughly aware that big money in politics is a problem. That awareness has bred disgust and cynicism, but it is only now reaching a point of anger and action.

What has been missing over the past forty years was an understanding that the US Supreme Court intentionally created this problem—and that there is a solution to that problem, namely reversing the Court with a constitutional amendment.

Admitting the Emperor Wears No Clothes

Public critique of the Buckley opinion began almost as soon as it was issued. Judge Skelly Wright, who had upheld the post-Watergate reforms on the appellate court, publicly disagreed with the Supreme Court’s final decision.¹⁸⁴ However, because organizations need to demonstrate progress in order to keep their members, staff, and boards of directors motivated, most reform groups continued to tout the 1974 reforms and the pieces upheld by the 1976 court ruling in Buckley as a success.

Likewise, members of Congress felt they had done their job and were ready to move on to other issues. As a result, there was no supermajority support for an amendment in the 1970s or 1980s, or even public understanding that one was needed.

In June 1982, Congressman Henry Reuss of Wisconsin concluded Buckley was unworkable and needed to go. He introduced an amendment authorizing Congress to regulate federal campaign spending. In explaining his reasoning, he said:

Freedom of speech is a precious thing. But protecting it does not permit someone to shout “fire” in a crowded theater. Equally, freedom of speech must not be stretched so as to compel democracy to commit suicide by allowing money to govern elections.¹⁸⁵

In December 1982, eleven other representatives joined Reuss to back a broader amendment that authorized contribution and spending limits at both the state and federal levels.¹⁸⁶

Nobody noticed.

But one of those eleven, Representative Bob Edgar from Pennsylvania, would go on to play a significant role in elevating the constitutional amendment debate.

Ignoring Buckley

In 1983, Reuss again introduced his amendment with bipartisan support in the House. Republican Ted Stevens from Alaska introduced it in the Senate. No hearings were held. No reform group championed the idea. Like a tree falling in a forest with nobody to hear, it made no sound.

In March 1988, the Committee on the Constitutional System, a group of several hundred current and former legislators, executive branch officials, academics, and civic leaders cochaired by President Jimmy Carter’s White House counsel Lloyd Cutler, Republican senator Nancy Kassebaum, and Douglas Dillon (who served under Presidents Eisenhower, Kennedy, and Johnson), concluded:

The only effective way to limit the explosive growth of campaign financing is to adopt a constitutional amendment. … Even the Congress has found that unlimited speech can destroy the power to govern: that is why the House of Representatives has imposed time limits on Members’ speeches for decades and why the Senate has adopted a rule permitting sixty senators to end a filibuster. One might fairly paraphrase Lord Acton’s famous aphorism about power by saying “All political money corrupts; unlimited political money corrupts absolutely.”¹⁸⁷

This committee’s report became the basis of the bipartisan amendment (mentioned in chapter 6) by Senators Fritz Hollings and Arlen Specter, first introduced in 1988. Leading reformer Fred Wertheimer opposed it, saying it would only delay efforts to pass incremental reform legislation. Nonetheless, the amendment received fifty-three votes in the US Senate—still short of the sixty-seven votes needed for two-thirds support.¹⁸⁸

Still, nobody noticed.

To this day, almost nobody remembers this vote even happened.

On May 27, 1993, the Senate again voted 52–43 in favor of the Hollings-Specter amendment—remarkable given that no reform organization embraced the idea and there was no media coverage of the congressional debate.¹⁸⁹

Things went downhill from there.

The Stage of Ridicule: Even Reformers Oppose the Amendment

Senator Hollings would not give up. On February 14, 1995, Hollings received forty-five votes for his amendment on the floor of the US Senate.¹⁹⁰

A few academics joined the fray. In 1996, Ronald Dworkin and forty other constitutional scholars signed an open letter noting:

We believe the Buckley decision is wrong and should be overturned. The decision did not declare a valuable principle that we should hesitate to challenge. On the contrary, it misunderstood not only what free speech really is but what it really means for free people to govern themselves.¹⁹¹

By 1997, with Buckley v. Valeo gone from the public’s consciousness, with essentially no news coverage about an amendment as a possible remedy, and with no support from major reform organizations, 59 percent of the public nevertheless supported a constitutional amendment to allow limits on campaign contributions and spending.¹⁹²

A supermajority was forming to identify and address the problem, but pundits were not ready to take a solution seriously. In fact, the modest increase in public support only moved attention to the amendment from being ignored to being ridiculed. This was actually progress, although at the time it looked like we were taking two steps back.

In March 1997, Senator Hollings passionately took to the floor once again, telling his colleagues:

What Buckley says is: Yes, if you have a fund-raising advantage or personal wealth, then you have access to television, radio, and other media and you have freedom of speech. But if you do not have a fund-raising advantage or personal wealth, then you are denied access. Instead of freedom of speech, you have only the freedom to say nothing.¹⁹³

This was also the first time that any organized support existed for the amendment outside of Congress, but it was meager. As the then 28-year-old director of the Americans Against Political Corruption campaign, I was the sole advocate in Washington, DC, promoting the amendment—and I was not exactly a Beltway heavyweight. Because the Hollings-Specter amendment was one of many votes pertaining to a series of reform proposals, it was covered in national papers—but not favorably.

The Philadelphia Inquirer noted opposition from Common Cause, the Christian Coalition, the ACLU, and the Clinton administration and listed no supporters, while the New York Times quoted only the US Public Interest Research Group in support.¹⁹⁴ The Buffalo News became the first and only newspaper to endorse the amendment.¹⁹⁵ Senators Russ Feingold and Edward Kennedy circulated a letter saying the amendment could actually “create a permanent obstacle in the path to reform.”¹⁹⁶

Other Democrats used the failure of the amendment vote to launch a new effort for public financing of congressional campaigns, which they believed would be more easily won. The amendment was belittled even by many who were concerned about money in politics, who saw it as a distraction.¹⁹⁷

This time only thirty-eight senators voted for the Hollings-Specter amendment, including four Republicans.

In 2000 at a Harvard Law School symposium, representatives of most reform organizations said the country didn’t need an amendment.¹⁹⁸ Support for the amendment shrunk to thirty-three in the Senate, with Senators John McCain and William Roth as the only Republicans.

By 2001, support was back up to forty votes, including four Republicans, while big money Democrats like John Edwards and Bob Torricelli joined liberals like Edward Kennedy and Russ Feingold in opposing it.

With Citizens United, the Fight Begins in Earnest

Just a few years later, big money cronies smelled blood in the water. Not only was the composition of the Supreme Court more hostile to campaign limits, but support for an amendment had gone downhill in Congress. The reform movement had exhausted its energy passing the incremental McCain-Feingold bill in 2002 and then lost steam. Senator McConnell concluded that voters never punished politicians for weakening campaign finance laws, so he went on the offensive—working in broad daylight to eliminate all limits on money in politics both through legislative repeal and judicial activism.

The Supreme Court began a step-by-step dismantling of what remained of our campaign finance laws, beginning with the ruling striking down meaningful contribution limits in Vermont and continuing with the Wisconsin Right to Life opinion that severely weakened the McCain-Feingold law. While reform groups complained, the country hardly noticed.

All that changed with the Citizens United opinion.

Maybe it was the morally offensive idea of corporations being considered people with constitutional rights, combined with the idea that money was speech, although the Court had said both things before. Maybe it was the beyond-the-pale process by which John Roberts, who had promised judicial modesty in his confirmation hearings, went out of his way to issue a sweeping opinion going far beyond the facts of the case and reversing recent precedent of the Court. Maybe it was the handful of organizations that spoke out in the strongest possible terms about the decision and began organizing immediately to overturn it.

Whatever the reason, people noticed. The fight had begun.

Steeling Our Resolve

The amendment movement suddenly caught fire. Within a year of the Citizens United ruling, 79 percent of voters said they would support an amendment to limit corporate spending in elections, although only 22 percent knew the Citizens United ruling by name.¹⁹⁹ Just two years later, 54 percent of voters had heard of the Citizens United opinion,²⁰⁰ possibly a higher percentage than could name any other Supreme Court case.

The amendment moved from something to ridicule and became something to fight—both for and against.

Reaction to Citizens United began at the grass roots, not in Washington, DC. Prominent activists formed two new organizations, Free Speech for People and Move to Amend, to organize around an amendment at the state and local level.

Just as Thomas Jefferson organized resistance to the unconstitutional federal Sedition Act by drafting state resolutions denouncing it, state legislatures led the call to repeal Citizens United. Hawaii was the first, passing a resolution just months after the Citizens United ruling “respectfully requesting” Congress to propose an amendment to clarify the distinction between the rights of persons and the rights of corporations.

I was the western states director of Common Cause at the time, and Hawaii’s legislature was moving faster than the nation’s oldest and largest reform organization, which still had no formal position on an amendment. Nonetheless, I told the Hawaii Common Cause director Nikki Love she could support the resolution. Things happened so fast and so organically that no other national group was even aware of Hawaii’s resolution, yet it passed easily.

By this time, former Pennsylvania congressman Bob Edgar had become the president of Common Cause. As mentioned, Edgar was one of the first eleven members of Congress to support an amendment. Spurred by grassroots requests from Hawaii, Colorado, and other states, Common Cause now enthusiastically embraced the amendment, as did Public Citizen, another stalwart reform group. Organizations relatively new to campaign reform such as People for the American Way jumped on board with significant staff time and grassroots outreach. The Center for Media and Democracy was also one of the first groups to provide significant research in support of an amendment.

New Mexico became the second state. In February of 2012, the legislature passed a resolution in support of an amendment to get big money out of politics, drafted by Free Speech for People.

Faster than any one person or organization could even keep track of, let alone initiate, hundreds of state and local elected officials rose to the occasion by passing resolutions denouncing Citizens United. By June of 2012, five state legislatures and 288 localities had gone on record against it.

Taking It to the People

In April 2011, 78 percent of voters in Dane County, Wisconsin, approved a ballot measure drafted by Move to Amend that asked, “Should the US Constitution be amended to establish that regulating political contributions and spending is not equivalent to limiting freedom of speech, by stating that only human beings, not corporations, are entitled to constitutional rights?” In November, voters in Boulder, Colorado, and Missoula, Montana, would approve similar advisory measures by three-to-one margins.

Seeing those overwhelming results in liberal college towns, I wondered what would happen if reformers strengthened the measures to “instruct” rather than “urge” or “advise” Congress. Further, I suggested we take instruction measures to statewide electorates that were more conservative. When I floated the idea in the Washington Monthly,²⁰¹ many amendment proponents were skeptical. Did anyone even know what it meant to instruct our representatives? What would happen if we lost? Wouldn’t that kill the movement?

Bob Edgar at Common Cause wasn’t fearful. He put the full strength of the organization toward helping a statewide voter instruction measure in Montana, along with Free Speech for People and a group of local reformers who took the lead. It was a sign not only of a newer, bolder approach by Common Cause but of a reform movement that was now fully ready to embrace an idea it had marginalized during the 1990s.

Voters Issue Instructions

Montana, with its long history of standing up to big money, was an ideal battleground. The Stand with Montanans campaign formed to qualify a voter instruction and soon drew support from both Democratic governor Brian Schweitzer and Republican lieutenant governor John Bohlinger.

I-166 set an official state policy that

each elected and appointed official in Montana, whether acting on a state or federal level, advance the philosophy that corporations are not human beings with constitutional rights and that each such elected and appointed official is charged to act to prohibit, whenever possible, corporations from making contributions to or expenditures on the campaigns of candidates or ballot issues. As part of this policy, each such elected and appointed official in Montana is charged to promote actions that accomplish a level playing field in election spending.²⁰²

In a few months, 40,092 Montanans signed petitions to place I-166 on the ballot.

Inspired by Montana’s momentum, Colorado activists and organizations launched their own petition drive to qualify an instructions measure drafted by Colorado Common Cause. It said:

The voters instruct the Colorado congressional delegation to propose and support, and the Colorado state legislature to ratify, an amendment to the United States Constitution that allows Congress and the states to limit campaign contributions and spending, to ensure that all citizens, regardless of wealth, can express their views to one another and the government on a level playing field.²⁰³

Colorado Fair Share organized an unprecedented petition drive, gathering 182,113 signatures in four short weeks—the most in Colorado initiative history.

Massachusetts has what may be the nation’s oldest instructions process where signatures are gathered by legislative district. Volunteers from Common Cause, Move to Amend, and other groups qualified an instruction measure in thirty representative districts and six state senate districts, giving roughly a third of the state’s voters a chance to speak their minds. It asked:

Shall the state representative from this district be instructed to vote in favor of a resolution calling upon Congress to propose an amendment to the U.S. Constitution affirming that (1) corporations are not entitled to the constitutional rights of human beings, and (2) both Congress and the States may place limits on political contributions and spending?²⁰⁴

The legislature responded even before Election Day, passing a resolution calling for an amendment by a vote of thirty-five to one, with every Republican legislator in favor.

Are Words Binding?

Just as the New York Times had belittled nineteenth-century instructions against prison labor instead of debating the issue forthrightly, so too did opponents to the Montana and Colorado measures argue they were a waste of time because legislators weren’t legally required to follow the instructions. As in the past, voters chose to instruct anyway.

In November 2012, 55 percent of Montanans voted for Mitt Romney as president, whereas 75 percent voted for I-166 to overturn Citizens United.²⁰⁵ The country took note—the vote drew the attention of the Wall Street Journal²⁰⁶ and praise from the New York Times editorial board.²⁰⁷

Voters in every Colorado county approved their instruction measure with an average of 74 percent statewide. In Massachusetts, support was at 79 percent—the same electorate gave Elizabeth Warren 53 percent of the vote.

From blue Massachusetts to red Montana, the people had spoken and the results were indisputable. Dozens of other towns and cities (including Chicago, San Francisco, and Eugene, Oregon) also passed instruction measures by overwhelming margins—usually three to one. In fact, not one instruction measure to overturn Citizens United has ever lost.

The unanswered question is whether voters will find a way to enforce these instructions, either by demanding legislators resign if they don’t obey them or by voting out of office those who defy their constituents.

It took Oregon voters from 1901 to 1907 to effectively bind legislators to their will through the use of ballot notations that informed voters if legislators disregarded their instructions regarding specific candidates for US Senate. Success today will hinge on the ability of reformers to educate voters whether legislators have actually followed their instructions by using a different tool, since the Supreme Court has struck down ballot notations as a means to inform voters about compliance with their instructions.²⁰⁸ Ironically, the Court has removed one of the tools we could use to check the Court’s power.

California’s Prop 49

After Richmond and San Francisco overwhelmingly passed voter instruction measures in 2012, California Common Cause approached the legislature to place an instruction measure on the statewide ballot calling for a constitutional amendment. After strong resistance from legislative staff, the bill died without even receiving a vote in its first committee.

Los Angeles moved forward, however, when the city council placed Prop C on the ballot for the spring of 2013—which 77 percent of voters passed despite opposition from the Los Angeles Times. (For the full text of Prop C, see appendix II.)

In 2014, I campaigned for California secretary of state on a promise to push for a voter instruction measure in 2016 to overturn Citizens United. The Money Out Voters In coalition thought that was too slow, so Los Angeles activist Michele Sutter began looking for a legislator to introduce a bill for the 2014 election—even though the same idea had gone nowhere just the year before.

Marianne Williamson, a prominent author, launched an outsider campaign against longtime congressman Henry Waxman on a platform that included overturning Citizens United. When Waxman subsequently announced his retirement, dozens of candidates entered the race, including state senator Ted Lieu. Having sponsored successful campaign disclosure bills in the past, Lieu wasn’t about to be out-reformed by Williamson. Further, Lieu was well aware of the instructions Los Angeles voters had given area officials in Prop C just a year before.

Lieu took up the challenge of moving an instructions bill to overturn Citizens United through the legislature, even though the prospects looked dim. A few months later, I thanked one of Lieu’s coauthors, who acknowledged my gratitude but politely told me “it’s not going to pass you know.”

It looked impossible—even the bill’s champions didn’t think we could win.

Undeterred, the Money Out Voters In coalition—working with such organizations as the California Clean Money Campaign, Democracy for America, Courage Campaign, and CREDO Action—marshaled some 55,000 petition signatures, over 40,000 e-mails, and 176,000 faxes to California legislators in support of Senator Lieu’s voter instruction measure. Hundreds of citizens attended hearings in support of the bill. In nearly twenty years of reform advocacy, I had never seen a grassroots effort this substantial.

The bill passed through committees but was still likely to die when Kai Newkirk and others from 99Rise appeared on the scene.

As noted in chapter 1, Newkirk and a dozen activists walked 480 miles from Los Angeles to Sacramento, demanding a statewide instructions vote on Citizens United and that the legislature immediately call for a convention with other states to begin drafting an amendment. I was one of hundreds of people who joined the march as it left Los Angeles and again when it arrived in Sacramento. The country hadn’t seen anything like it since Doris “Granny D” Haddock’s walk across the country in support of campaign finance reform back in 1999.

The march culminated with a rally at the California state capitol where thirteen people were arrested for protesting too long. But that was only the beginning. For two more weeks, demonstrators held teach-ins and sit-ins on the floor of the capitol rotunda—with forty-seven people eventually arrested for “speaking too much.” Legislators heard their speech, with several noting the courage of “the young people” as they cast their votes for Senator Lieu’s bill.

The impossible had happened and Proposition 49 was on the ballot.

The California Supreme Court Silences the People

Just as James Buckley had done in 1974, after losing in the legislature, big money sought refuge in the courts.

The Howard Jarvis Taxpayers Association knew it would not agree with what voters would say, so it tried to keep them from saying anything at all. It sued. The group argued that the legislature simply wasn’t allowed to place an instruction measure on the ballot.

A district court dismissed the case almost immediately.

Then the California Supreme Court issued a stunning ruling. It removed Prop 49 from the ballot—cancelling a democratically called election. Prominent liberal judge Goodwin Liu wrote that the legislature could commission an opinion poll if it wanted to learn how voters felt about something, but it could not place an instructions measure on the ballot.

Liu and his colleagues on the California court had completely overlooked Article I, Section 3 of the California constitution, which guarantees voters the right to instruct. Our top judicial minds did not know that the California legislature had placed an instructions measure on the ballot the very same year that voters approved the state constitution. The judges’ ignorance bred arrogance, and these members of the California judicial branch denied voters a chance to speak out against the federal judicial branch.

Chief Justice Tani Cantil-Sakauye, a Republican appointee, dissented. She noted that there was no harm in allowing Californians to vote on Prop 49 and the court could fully consider whether the instructions were valid in due time after the election was over, as is the normal practice of the court.

Imagine how the mainstream US media would respond if Russian president Vladimir Putin cancelled an election he was likely to lose right at the time of a major parliamentary debate.

But instead of outrage, elitist California newspapers cheered. The Los Angeles Times, which had opposed the local instructions measure in 2013, said Prop 49 would have “been a distraction from the consequential decisions California voters will be making on Election Day.”²⁰⁹ Some of those decisions included who California would send to Congress, and Prop 49 was pulled from the ballot right at the moment when Congress was taking up the issue of Citizens United.

Goodwin Liu was clueless about that pending congressional debate, writing “there appears to be nothing urgent on the state or federal political landscape that makes the electorate’s input on Citizens United any more salient or timely now than it will be in, say, 2016.”²¹⁰

A Polarized Congress Renews the Debate

What Judge Liu didn’t know, or bother to find out, was that after seeing the public opinion polls, the letters to the editor, the state and local resolutions, and the overwhelming voter instruction votes, Senate Majority Leader Harry Reid was finally ready to step up to the issue. He scheduled hearings and a full Senate vote on Senator Tom Udall’s constitutional amendment during the summer of 2014.

Unlike the Hollings-Specter proposal, which had bipartisan support, Republican senators now unanimously rejected the amendment. Unlike the 1990s, when prominent liberal senators opposed the amendment, every Democrat now supported it.

Nearly every issue saw similar party-line votes in the 113th Congress, so the Udall vote may have hidden some true Republican supporters who didn’t want to break party unity. Indeed, Republican senator Lindsey Graham came out publicly for an amendment to reverse Citizens United just six months later.

There may also have been some Democrats who voted in favor only to support their party and whose vote ought not to be taken for granted in the future. Nonetheless, the Senate vote could have set the stage to test whether voters would hold legislators accountable for their position on limiting money in politics. Democrats could have campaigned around this vote and turned the 2014 elections into a national referendum on Citizens United.

They didn’t.

Colorado senator Mark Udall followed the instructions that his constituents passed in 2012 by voting for his cousin Senator Tom Udall’s amendment. Mark Udall’s opponent, Cory Gardner, dodged taking a position on the Citizens United ruling.²¹¹ Yet Udall didn’t run a single ad about his position on Citizens United and instead focused on abortion. Mark Udall lost.

Voters gave Republicans control of the US Senate shortly after every Republican senator voted against the amendment. Although some candidates and outside groups did raise the issue of corruption,²¹² the election was not about Citizens United or a constitutional amendment. Unlike the election of 1936, where voters clearly considered and rejected the Supreme Court’s repudiation of the New Deal, the 2014 elections were a general rejection of President Obama’s handling of the economy and foreign policy. Obama’s approval rating was at 40 percent, and a majority of the country was pessimistic about the future.

Democratic candidates may not have campaigned around the Udall amendment because reformers and reporters tend to portray both parties as equally corrupt. Campaign disclosure laws do indeed reveal that candidates from both parties accept huge funds from special interests. Alternatively, some Democratic candidates may not have wanted to alienate their own big money donors during the campaign.

So while voters were upset by big money in politics, they did not yet perceive that either major party would deliver a solution in 2014. That may be why record numbers of voters stayed home on Election Day.

Perhaps that will change in 2016 as Bernie Sanders, Hillary Clinton, and other Democrats made overturning Citizens United a priority, both with support for a constitutional amendment and pledging to appoint justices who would overturn it to the Supreme Court.

Changing the Electoral Calculus

In a 1995 letter to his House Republican colleagues, who were increasingly supportive of limiting money in politics, Senator Mitch McConnell reminded them that they had killed campaign finance reform right before the 1994 elections and yet taken over the House majority that year. That was “proof positive that this issue is not a hindrance to us at the polls,” McConnell concluded.²¹³ The 2014 elections only reinforced his view.

Republican voters want to limit big money in politics by nearly the same huge margins as Democratic or Independent voters. But some Republican legislators, McConnell in particular, have calculated that there is a greater advantage to be gained by accepting huge contributions and opposing limits than any downside of losing support from voters. Reformers will not win until that calculus changes in one (or all) of three ways:

1. Democrats could go for the money by adopting pro-Wall Street stances and other corporate positions in an attempt to outraise Republicans. For instance, Congress agreed to ban soft money to national parties at about the time Democrats had reached parity with Republicans in soft money fund-raising. Some Democrats are indeed pursuing this strategy, arguing that Democrats need to become more pro-corporate in order to be competitive.²¹⁴ Tom Steyer, a billionaire investment banker who favors Democratic candidates and causes, spent $74 million of his own money to influence the 2014 elections, more than any other single person. To the extent that Democrats succeed in at least tying the fund-raising arms race, we may see more Republican legislators supporting an amendment and perhaps fewer Democrats. This would also reduce any chance that voters will perceive a difference between the parties on the issue of big money in politics.

2. Voters could punish candidates of any party for their positions on Citizens United by voting them out of office, changing the calculus that it is more valuable to raise big money than to side with constituents. Voters are only likely to do this if there are stark differences between candidates on the issue of Citizens United, if voters are aware of those differences, and if they believe that an amendment can pass and will work. Unless one party can truly distinguish itself as the party of reform, voters may be more likely to prioritize campaign spending limits as an issue in primary elections, between candidates of the same party who hold similar positions on other issues.

3. Underdog candidates of both parties could find a way to win even while being outspent, thus reducing the advantages of big money. This could happen if candidates take populist positions that bring new voters into the electorate, if either the mainstream news media or social media plays a greater role than paid ads in informing voters about candidates’ positions, or if grassroots candidates find ways to compete with big money candidates through free airtime, voters guides, public financing, or small donor contributions.

The Fate of the 49ers

On October 5, 2015, the California Supreme Court finally conducted a thorough hearing of the merits of Prop 49, which it had preliminarily removed from the ballot in 2014 on the grounds that it would likely be found unconstitutional. Free Speech for People submitted an amicus brief on behalf of the Money Out Voters In coalition and several public interest groups. The brief reminded the court of California’s constitutional guarantee of the right to instruct and of the clear understanding by voters that legislators would refer instructions to the ballot.

As this book goes to print, the California court still has not ruled on the appeal of Proposition 49. Californians may yet get the chance to instruct their congressional delegation to amend the constitution to get big money out of politics.

What If They Won’t Let Us Instruct?

California is not the only place where judges and other bureaucrats try to prevent people from having a direct say in their government. Many city attorneys turn up their nose at the idea of using the ballot to further a national conversation about any issue. Ignoring that a constitutional amendment requires a massive conversation above and beyond normal politics, the bean counters want to focus only on the trees without stepping back to look at the forest.

It’s often possible to surmount bureaucratic opposition to a voter instruction by combining it with other ideas. For instance we could:

♦ enact an official policy, as Montana and San Francisco did in 2012, and then instruct all elected officials to implement the policy, or

♦ require an elected official, perhaps the secretary of state, to transmit the results of the instruction to all elected representatives in the state and then report back to voters on whether legislators carried out those instructions, or

♦ combine instructions with a jurisdiction-wide Democracy Day where public officials are required to conduct a hearing on the general status of democracy and specifically on whether legislators have complied with instructions, or

♦ pass a statute that limits money in politics in direct defiance of the US Supreme Court and also instruct elected officials to use all their official capacity and authority to enforce that statute.

Next Steps

Before it succeeds, the amendment movement will enter a stage where it finds majority support in both houses of Congress but not the two-thirds necessary to send an amendment to the states to ratify. It has already reached that stage in the US Senate. This stage will be similar to the 1890–1911 period during the movement to win direct election of senators, when there was supermajority support among the public and two-thirds support in the House but not in the Senate. Here are seven steps reformers could take to convert supermajority public support into sufficient legislative support.

Step 1: A Confirmation Battle Royale

The next president will likely have the opportunity to replace at least one Supreme Court member who opposed Citizens United (perhaps Ruth Bader Ginsburg) and two members who supported it (possibly Anthony Kennedy and Antonin Scalia). If two out of those three new members oppose the Citizens United ruling, and if a new case is presented to the court before the vote count flips back, the Court could reverse Citizens United on its own. The confirmation process alone could turn into a national debate about big money in politics. Americans should demand that senators ask Court nominees whether they think unlimited spending is the same thing as free speech and oppose confirmation of any nominee who provides a squishy answer. Voters could also question candidates for the Senate to see if they would apply this litmus test to court nominees.

Step 2: A National Voter Instruction

Citizens in Alaska, Arkansas, and Washington state may follow the lead of Colorado and Montana and hold statewide votes to instruct their congressional delegation to use all possible means to overturn the Citizens United ruling, including a constitutional amendment. Other states may join the effort—but many states do not have a process by which citizens can place an instruction question on the ballot.

So why not do it nationally? Unlike in California and other states, there is no national right to instruct members of Congress, nor is there a national initiative process where voters can place questions on the ballot. But nothing prohibits Congress from placing a voter instruction measure on the national ballot just as Chicago, Los Angeles, San Francisco, and other localities have done.²¹⁵ Reformers could take this step with majority support that falls short of the two-thirds needed to formally move an amendment out of Congress.

Although we have never had a national instructions vote, the idea has been proposed before. Senator William Stone introduced a bill for a national voter instruction measure in 1916 to ascertain the people’s wishes about entering World War I.²¹⁶ In 1939, the House actually voted on a similar proposal by Wisconsin senator Bob La Follette regarding World War II, defeating it by vote of seventy-three to seventeen.²¹⁷

It’s unclear if Congress could force state election officials to place a federal instruction question on state ballots. If a state refused, Congress could direct the Election Assistance Commission or another federal agency to administer the instruction election using a separate vote-by-mail ballot.

Step 3: Defy the Roberts Court

Either a federal instruction measure or a state ballot initiative could combine a voter instruction with a statute that defies the Supreme Court’s edict that money is speech—for instance by setting limits on contributions to super PACs or on candidate campaign spending. That would set the stage either for a court reversal or a constitutional crisis if the executive branch chose to enforce the law despite the Supreme Court’s contrary opinion.

In 2012, Representative John Dingell introduced a defiance bill called the Restoring Confidence in Our Democracy Act that reenacted the policies that the Roberts Court struck down in Citizens United. Congress could pass a similar bill by majority vote.

John Roberts does not want to go down in history as the chief justice who baited Congress to ignore him and permanently weaken the Supreme Court as an institution. He also doesn’t want to find out what would happen if a president refused to send in troops to enforce his Court’s unjust order against a state law limiting money in politics.

Reformers will win if John Roberts concludes now what Owen Roberts concluded in 1937 when he made the “switch in time that saved nine” described in chapter 5—that the only way to preserve his institution’s power and his place in history is to reverse his wrongheaded ruling.

Step 4: A New Electoral Strategy for Uniform Accountability

In 2014, Harvard professor Larry Lessig formed a project called the Mayday PAC, which spent more than $10 million in ten targeted races around the country trying to elect reformers and defeat antireform incumbents. While the effort no doubt influenced some voters, it neither persuaded enough of them to prioritize reform as an issue, nor inspired many new people to enter the electorate.

One factor that thwarted Mayday PAC was that incumbent political machines moved big money into the ten targeted races in order to offset Mayday’s spending. Some critics questioned the choice of targets as well.

Rather than targeting a handful of races, reformers could apply uniform criteria to all races and issue a scorecard to every incumbent and a corresponding pledge to every challenger on whether they would support a constitutional amendment to reverse Citizens United. Moving a small number of voters to prioritize this issue in every district might be easier than getting a larger number to prioritize the issue in a small number of districts.

With low-turnout elections where very few voters change their minds, changing just a few votes in a district that was not targeted could yield surprising results. This strategy could work particularly well in primary elections, just as the Tea Party has demonstrated success in unseating incumbents who have not addressed their priorities and concerns. An electoral campaign would work even better if there has been a national instructions measure to which every incumbent can be held accountable.

Step 5: Changing the Process State by State

One of the key factors in winning direct election of senators and women’s suffrage was the ability of reformers to change the rules at the state level. Members of Congress from those states then had no reason to fear new federal rules because they were already playing under similar state rules.

The 1974 Federal Election Campaign Act (FECA) preempted states from setting their own contribution limits for congressional elections. Courts have ruled that this same preemption prevents states from offering public financing to federal candidates. But this part of FECA could be repealed.

Reformers who had a simple majority, but not two-thirds, could abandon a uniform federal approach and go back to letting states set rules for their own congressional races. We might then see several states sending members to Congress who could only accept small contributions rather than the current federal limit of $2,700. Especially if those states matched small contributions with public funds, some grassroots candidates would be able to beat big money candidates backed by the super PACs.

Even without a repeal of FECA, states could implement digital voter guides that provide every candidate an opportunity to communicate with voters at no cost to their campaign through a series of online videos. California and other states already provide voters with printed guides to candidates for federal office, which does not conflict with federal campaign finance rules.

Step 6: Forcing a Crisis with a Convention of the States

A grassroots group called Wolf PAC is leading efforts to have legislatures apply for a convention of the states to draft an amendment if Congress refuses to do so. They have had impressive success, with Vermont, California, Illinois, and New Jersey making formal applications for a convention and other states seriously considering it.

Several questions about how a convention would work have hindered this approach, including:

♦ Who will be the delegates to the convention?

♦ What will the rules be for the convention?

♦ Will it be confined to proposing amendments only on one topic, or can delegates propose multiple amendments about anything they want?

A significant push for a convention of states to propose a balanced-budget amendment has demonstrated the power of this approach, but it has also raised concerns. Since the 1980s, some twenty-seven states have applied for a convention to draft a balanced-budget amendment, and that momentum (combined with Ross Perot’s presidential run) pressured a Republican Congress and President Bill Clinton to enact several balanced budgets in the 1990s. States are renewing these efforts, leading those who worry about the damage a balanced budget could do during times of war or recession to oppose any constitutional convention for fear it could produce a balanced-budget amendment in addition to other amendments.

Congress could resolve such questions, again by majority vote, and pass rules by which a convention of state delegates would operate. But Congress has refused to do this because it does not want to encourage a convention of states around any issue. Nonetheless, if a simple majority in Congress was really serious about an amendment to limit big money in politics, it could take this step.

An alternative would be for the states calling for a convention to pass what’s known as an interstate compact that would set the rules for the convention to operate. Interstate compacts are routine procedures that often deal with issues such as regional transit authorities or bodies of water that cross state lines.

There is a growing movement to change the way states appoint their representatives to the Electoral College through an interstate compact that would in effect institute a national popular vote for presidential elections.²¹⁸ Interstate compacts are guaranteed in the Constitution and enforceable in court.

A state’s compact for a convention could specify who delegates would be—perhaps the Speaker of each house from a state’s legislature as well as the leaders of the majority and minority parties. It could include a provision to immediately recall a state’s delegates if any member of the convention proposed an amendment that was beyond the scope that had been authorized by the state applications. In that way, legislatures could prevent the convention from going off topic by denying it a quorum.

Most likely, as with the Seventeenth Amendment, Congress would act once the number of states calling for a convention approached the number needed to actually convene one. But if Congress still stonewalled, the states’ convention could propose an amendment that would still require ratification of thirty-eight state legislatures.

That ratification requirement, along with an interstate compact or congressional rules outlining precisely how the convention would operate, would eliminate concerns about a runaway convention proposing amendments a supermajority of voters do not want.

Step 7: Nonviolent Protest

Supreme Court rulings are not set in stone. They are not brought down from the mountaintop by Moses, John Roberts, or anyone else. They are not always right.

As a government becomes more tyrannical, it closes off formal processes for change and dissent. Judges ignore state constitutions in order to cancel voter instruction elections aimed at refuting other judges, for instance.

Too often, reformers confine their imagination to the narrow box of prescribed rules for passing policy rather than stepping back to the inherent and inalienable rights set forth in our Declaration of Independence. When we find our formal process for governing ourselves is broken, we can do what people the world over have done to overthrow corrupt and oligarchic regimes.

We can take to the streets.

Our predicament is less dire than what workers in Poland’s Solidarity movement faced in the 1980s, or what blacks living under South Africa’s apartheid regime endured for almost fifty years. Pro-democracy activists in Egypt did not change their constitution by following the rules outlined by Hosni Mubarak; they ousted him with protests in Tahrir Square. If they can prevail, so can we.

Nonviolent direct action has deep roots in the United States. Although polite advocacy played an important role in winning the right to vote for women, suffrage was pushed over the brink when the “iron-jawed angels” refused to be force-fed. Their hunger strike spoke louder than words when the government imprisoned them for their political speech.

Our Supreme Court tries to project power, but it does not command any army and lately does not command much public respect. The 320 million residents who are not on the Supreme Court can easily defeat the five recalcitrant ideologues who control the Court.

Just such a popular protest movement is already afoot.

One year after Kai Newkirk was arrested for speaking his mind in the US Supreme Court, seven more people were jailed for doing the same thing. Four months later, on the one-year anniversary of the McCutcheon v. FEC ruling, five more members of 99Rise were arrested for protesting inside the Supreme Court despite escalating threats of prosecution.

On April 15, 2015, Florida mailman Doug Hughes risked his life by flying his gyrocopter through restricted airspace to land on the lawn of the US Capitol. Hughes was arrested before he could deliver his 535 letters to members of Congress demanding that they overturn the Citizens United ruling. More such protests—equally disruptive, equally creative—are sure to follow.

The jails cannot hold 320 million people. What will they do when they run out of space?

Why It Is Easier to Accomplish a More Daunting Task

Pundits who are closer to the mechanics of passing legislation than they are to the desires of the people think it is easier to pass a modest reform statute than a sweeping constitutional amendment. After all, it takes sixty-seven votes in the US Senate to propose an amendment compared to only sixty votes to break a filibuster and pass legislation.

But, is there a scenario where it is easier to get to sixty-seven than it is to get to sixty? Only if the proposal that needs sixty-seven votes musters significantly more public support than the incremental proposal—and this is the situation we find ourselves in with a constitutional amendment to get big money out of politics.

Joe Biden, in explaining his support for an amendment in addition to incremental reforms, noted that “moderate reform is like moderate chastity.”²¹⁹

It is difficult to persuade citizens to devote the time and energy needed to win any reform if it doesn’t seem as if it will make much of a difference. Likewise, voters will prioritize other issues instead of money in politics when casting their ballots if the differences between candidates are only a matter of degree or if every candidate can claim to be “anticorruption” but not held to any simple yet specific standard of what that means. And of course, no protester will risk arrest, let alone being shot out of the sky, just to pass a minor disclosure provision in wonky campaign finance law.

To reach either sixty-seven or sixty votes in the US Senate, reformers will need support from both Republican and Democratic legislators. It may actually be easier to get fifteen or twenty members of a political party to support a simple and popular amendment all together than it would be to get only four or five to break ranks over an obscure incremental measure that the public does not understand.

Along the way to an amendment, reform opponents will try to ventilate public pressure by offering partial solutions.

That’s good, because pressure for a real solution won’t go away, and we are more likely to win incremental victories by thinking big than by using incremental measures as a starting point for negotiations.

Reform Springs Eternal

When I first began working on money in politics in the mid-1990s, I figured we’d “solve” our problems in five to ten years and then I could go on to other things.

Like most reformers, I was drawn to the issue because I saw how big money had influenced and corrupted issues that had a direct impact on my life. When I realized it might take more than five to ten years, I drew up a twenty-year plan. But regardless of the timeline, it was important to me that there was a goal in sight, some time when the work would be done.

Five years into my work, my outlook changed. I found myself in Siena, Italy, inside one of the oldest city halls in existence. The people who had lived there formed city-states that operated as democracies hundreds of years before the American Revolution. Our Founders drew inspiration and experience from those Italian city-states.

Inside the 700-year-old city hall of Siena there is an extensive set of murals depicting good government and bad government. In the bad government painting, corruption flourishes, while famine and plague sweep the countryside.

While viewing the mural, I realized that reforming government is not a finite project. Reform will never be completed but is rather an ongoing process that every generation must undertake. We form a government only to see it change its form. We then must form it again—reform springs eternal.

We cannot inherit self-government from our forefathers; we must take it upon ourselves to achieve it.

It can be depressing to realize that we will never permanently arrive at “good” government and will instead forever strive for “better” government than we currently have. But, this realization is also encouraging. Even if our work is never done, we know that things can and will get either better or worse depending upon our own actions.

Doctors know that eventually every patient they treat will die, but the quality and length of their life can often be improved by diligent medical care, or shortened by neglect. Likewise, citizens must accept that there will be continual threats to our democratic republic, but with diligence and commitment we can make things better.

If we don’t act, we can also be assured that things will get worse.

It is up to us.

What you can do: To each her own

Pick one of these steps that’s right for you, and let others do the same. Different reformers prefer different means of solving the same problem, and that diversity is an asset. We don’t know which tactic will prevail, but we do know that having every citizen engage the problem will make every solution more likely. So, rather than arguing with fellow Americans about whether it’s best to focus on the courts, push Congress for an amendment, or call for a convention to propose an amendment, just move forward with the approach that you prefer.