Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at Bernie Sanders’s desire to banish the Citizens United decision, and the constitutional barriers in the way.
THE STATEMENT AT ISSUE:
“What began last week in Iowa, [and] voters here in New Hampshire confirmed tonight, is nothing short of the beginning of a political revolution. It is a political revolution that will bring tens of millions of our people together. It will bring together working people, who have given up on the political process. It will bring together young people who have never participated in the political process. It will bring together blacks and whites, Latinos, Asian-Americans, Native Americans, straight and gay, males and female, people who were born in America and people who immigrated here. We will all come together to say loudly and clearly that the government of our great nation belongs to all of you, not just a few wealthy campaign contributors.”
– Excerpt from a speech given by presidential candidate Senator Bernie Sanders of Vermont, in Concord, N.H., on February 9, after his victory in the Democrats’ presidential primary election. His comment about a “political revolution” is a standard line in his campaign speeches. A particular target of his rhetoric is the Supreme Court’s 2010 decision in the case of Citizens United v. Federal Election Commission.
WE CHECKED THE CONSTITUTION, AND…
After the Revolution of 1776, which meets any definition of what a “revolution” actually is, constitutionally and otherwise, America has had a series of political game-changing episodes,. But how many of them succeeded in overturning an old order of government or society, and set up a new one?
Coming close, at least, was Jefferson’s election in 1800, Jackson’s common man revolution in 1828, the conquest of America’s West, the Great Awakening of religious fervor, the stirrings of women’s rights at Seneca Falls, Lincoln and Emancipation and the assurance of an indestructible Union, the Progressives’ humanizing of the factory system, the management of global war, FDR and the social safety net, the coming of government giantism, the maximizing of judicial review and, with it, the civil rights, women’s rights and gay rights movements, the revival of federalism, the blessing and the scourge of consumerism, the subduing of disease, hunger and the process of aging, and, lately, something called a movement to “take back this country.”
Where does Bernie Sanders’ call to “political revolution” fit into that panoply of remarkable and sometimes surprising change? True, he is something of an elderly pied piper who, quite unnaturally, has become a little like Senator Eugene McCarthy leading children benignly in a political coming-of-age. But he strives also to be absolutely dreaded in Wall Street, in the corporate boardroom, and in the money-changing temples of campaign finance.
He has accomplished that rarest of political feats, an unknown who finds a way to be taken very seriously. Depending upon what happens in the rest of this year, he could be approaching national leadership. And, depending upon what he is able to do in energizing a “political revolution,” might he be another Jackson?
Those are, in the main, political considerations. But Senator Sanders has also given himself the task of leading a constitutional revolution, and that just might not get underway at all unless there is first a political revolt of significant dimensions.
From his very liberal, very “progressive” agenda, the Vermont senator may have found his best political message in his rhetorical assault on the Supreme Court’s decision in Citizens United v. Federal Election Commission. If he could, as he passionately wishes to do, cast that decision aside without ceremony or apology, he surely would try.
But it is telling, just six years after that ruling came down, how deeply entrenched in the American constitutional and political system it has become. There is simply no way that the current Supreme Court would admit it was wrong and strip that ruling from the casebooks. Its proud author, Justice Anthony M. Kennedy, has lost none of his pride in it, as a monument to free political speech in a democracy – even though its critics say it is mostly about money, not speech.
Beyond that, it is part of the political catechism among Republicans, in and out of Washington, that Citizens United has been nothing less than a vital and necessary foundation for the long-range GOP goal of becoming a permanent political majority.
Should Senator Sanders make it to the White House, would the revolution which he may have championed have drawn into Congress enough like-minded lawmakers to join him in a real, not merely a rhetorical, campaign against Citizens United?
The Constitution and Article V would not have changed by then, so it would still take a two-thirds majority in each house of Congress to overturn the Supreme Court, and it also would take a sturdy majority even to try to pass new legislation to control at least some of the side-effects of that decision, which launched unlimited campaign spending by people and committees independent (or mostly independent) of the candidates themselves.
Had the Sanders candidacy actually achieved something like revolutionary change, maybe there might be enough outside pressure on Congress to do something about the Vermonter’s campaign finance reform agenda.
Still, there would be the remaining question: even assuming that Congress would provide the necessary support for a constitutional anti-Citizens United amendment, what are the prospects of its ratification? It would take a minimum of 38 states to ratify an amendment. And, as of now, Republicans control 66 out of 99 state legislature chambers (the most in history) and with GOP governors, they have complete control in 24 states (compared to just seven for the Democrats).
How long would the political coattails of the Vermont senator have been – long enough to sweep through the state legislative races, too?
The Constitution’s Article V, of course, does offer an alternative way to ratify a proposed amendment to the charter. It is a method that, indeed, might well appeal to the leader and the followers in a political revolution. The people in the states could demand a ratifying convention, and if Congress agreed to that alternative, and if three-fourths of the meetings said Yes to the amendment, it would go into the Constitution – achieving another political/constitutional revolution.
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