by:
James Marc Leas, Truthout | News Analysis
Although the Constitution already includes a remedy, certain elected
officials and public interest organizations are advocating for a
constitutional amendment to overturn recent Supreme Court decisions that
have corrupted elections, public officials and government. They are
using Vermont town meetings as a springboard for the campaign. Critics
of the constitutional amendment approach point out that an amendment
would not solve the problem, legitimizes the Supreme Court seizure of
power over elections, would keep the Supreme Court in charge and diverts
from a solution already in the Constitution that more effectively
solves the problem with far less effort. The simpler alternative that is
already available in the Constitution deserves attention.
Supreme Court decisions legalizing private interest financing of
election campaigns have enabled a vast increase in private interest
control over our federal government. The 1 percent contribute hundreds
of millions of dollars in election campaigns to empower themselves and
disempower the 99 percent. To keep that money flowing to themselves,
elected officials waste enormous sums of taxpayer's money on government
contracts, subsidies, bailouts, wars and tax cuts for the rich. The 1
percent thus receive enormous returns on their political investments. By
contrast, the government uses the resulting deficits to justify cuts in
needed spending on education, health care, environment, safety and
infrastructure that would benefit the 99 percent who do not buy
elections and influence.
Here is why a constitutional amendment is not needed to end this
disenfranchisement of the 99 percent. The revolutionary leaders who
wrote the Constitution, fresh from overthrowing the tyranny of King
George, included sufficient checks and balances on all three branches of
government - including the courts - to prevent the kind of tyranny we
now suffer.
Under our existing Constitution, Congress already has the power to stop
the court from making any more of the decisions that have allowed the 1
percent to buy elections. Then Congress can pass legislation reversing
the unconstitutional decisions the court has made to corrupt elections.
Here is the provision the founding fathers included:
The Supreme Court shall have appellate Jurisdiction, both as to Law and Fact with such Exceptions and under such Regulations as the Congress shall make (US Constitution, Article III, Section 2).
Hence, under the Constitution, Congress has the power to remove Court
jurisdiction over financing election campaigns. Removing Court
jurisdiction means that the court would not even be able to take up
cases involving financing of elections. Congress and state legislatures
will then be free to pass laws removing private money from election
campaigns. Thus, Congress already has power to curtail the court and the
tyranny of private money in elections facilitated by the 5-4 majority
of Supreme Court judges whose goal is to empower the 1 percent at the
expense of the rest of us.
Separately, Congress also establishes and controls all "inferior courts" (Article III, Section 1).
It is not just the Constitution. As early as 1803, in a case called Marbury v. Madison,
the case in which the Supreme Court established judicial review, the
court also recognized that it must not decide questions that are "in
their nature political." Regulating elections and their funding to
prevent corruption is a quintessential political question. For 173
years, the courts followed this mandate and declined jurisdiction over
such political questions.
Under Article I of the Constitution, it is Congress - not the court -
that has the exclusive power to make or alter regulations regarding the
"Manner" of holding elections. Under this Article I power, "in 1907
Congress passed the Tillman Act, prohibiting national banks and
corporations from making contributions in federal elections. The Corrupt
Practices Act, first enacted in 1910 and replaced by another law in
1925, extended federal regulation of campaign contributions and
expenditures in federal elections and other acts have similarly provided
other regulations." (Congressional Research Service Annotated Constitution.)
Under Article I, Congress also has the exclusive power to judge the elections of its members.
All this changed in 1976 when the court injected itself into election financing and overturned long-established law, deciding
that corrupting money in politics is constitutionally protected speech.
The court, not Congress, established as law that putting money in the
pocket of a politician has the same protected status as speech by a
citizen. Thus, the court allowed the 1 percent with money to drown out
the speech of ordinary voters. In that decision and in 5-4 decisions
since then, the Supreme Court also violated its own long-established
precedent of keeping out of political questions so it could unleash
special interest money in politics. By doing so, the court overstepped
its judicial powers and intruded on Congress' legislative powers to
regulate and judge elections. the court thus violated the separation of
powers which is the most fundamental bulwark the Constitution provides
raised against tyranny. The disenfranchisement of the 99 percent and
auction of public policy to the 1 percent is the consequence of
Congress' failure to maintain the separation of powers with respect to
election integrity.
The decisions since 1976, including the 2010 Citizens United
decision, addressed an increasing problem for the 1 percent. Faced with
an aroused public, Congress had earlier passed vast amounts of
progressive legislation, including the Clean Air Act, product safety and
food safety laws, the EPA, the Clean Water act, the Occupational Safety
and Health Act, consumer protection laws and laws regulating campaign
contributions and spending. One of the ways the 1 percent fought back to
empower themselves and disempower the 99 percent was for pro-corporate
presidents to nominate pro-corporate justices, who would make elections a
commodity that corporations and wealthy individuals could finance and
control.
By enabling the upper 1 percent to buy elections, the court put an end
to rule of, by and for the people at the federal level and within most
states. The court not only put a stop to progressive legislation, but
they turned the government into an instrument to increase the wealth and
power of the 1 percent. To its credit, Vermont has successfully
resisted the power of money in several recent elections. But recent
Supreme Court decisions allow an overwhelming flood of private interest
money, even putting democracy in Vermont at risk.
Now is the time for we, the people; our towns; and our states to demand
that Congress use its existing power to re-establish the bar on court
jurisdiction over financing election campaigns, establishing public
funding and removing private interest money from elections.
Tragically, the recently initiated drive for a constitutional amendment
dangerously leads the public away from demanding that Congress act now
using its existing power. It implements delay. It substitutes an
incredibly difficult approach. It legitimizes the court's illegitimate
seizure of jurisdiction over a fundamental political question. It also
demeans the American revolutionaries, who purposely and intentionally
wrote this important check and balance into our Constitution for just
such a circumstance as the one we face now. And asserting that the only
solution is a constitutional amendment diverts, weakens, confuses and
demobilizes people.
Even if a heroic public managed to mobilize in great enough numbers to
force passage of a constitutional amendment, the amendment would not
actually solve the problem if jurisdiction over election financing is
left in the hands of this court. The majority on the Supreme Court,
having already violated their constitutional mandate, would find other
ways to use that continuing jurisdiction to make bogus decisions that
maintain and expand the power of the 1 percent.
What is needed is for Congress to remove jurisdiction over financing
election campaigns from the jurisdiction of the court. So the court is
entirely out of the picture on this subject as the Constitution and
Supreme Court precedent required. The revolutionaries who wrote the
Constitution provided Congress with the constitutional power to do just
that. Misleading the public away from that heritage and that power will
only legitimize and entrench the status quo.
If the text of the Constitution, as written by the revolutionary
leaders and the position of the court for 173 years regarding political
questions, as well as the specific Article I powers assigned exclusively
to Congress, are insufficient to persuade the reader of this article,
consider the practicalities:
-
A constitutional amendment requires a two-thirds vote in each House
plus ratification by three-quarters of the states within seven years, an
incredibly high bar.
- A law requires only an ordinary majority in each House to deny court jurisdiction over funding elections and to pass legislation removing private interest money from election campaigns.
Certainly, achieving an ordinary majority will be a difficult task. A
mass movement, such as initiated by Occupy Wall Street but far larger,
is needed to demand power for the 99 percent, equality and an end to
rule by the 1 percent. As difficult as demanding and achieving ordinary
legislation is with a Congress already corrupted by money in elections,
achieving a constitutional amendment will be inestimably harder.
The possibility of building the required movement is enhanced if the
public understands that Congress already has the power to accomplish the
goal with an ordinary majority vote. And that no almost insurmountable
hurdle, like two-thirds of each House and three-quarters of the states
within seven years, blocks the way.
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