Venerable Way to Overrule Reactionary Justices

Jamie Raskin is a professor of constitutional law at American University’s Washington College of Law and a state senator in Maryland, where he leads the Special Committee on Ethics Reform and serves as whip for the Democratic majority. He is the author of "Overruling Democracy: The Supreme Court Versus the American People."

October 24, 2012

“The state need not permit its own creation to consume it.” -- Justice Byron White
We the people have amended the Constitution many times to repair the damage to democracy inflicted by a reactionary Supreme Court. The 13th, 14th and 15th Amendments after the Civil War dismantled the Dred Scott decision (1857); the 19th Amendment (1920) overturned Minor v. Hapersett (1875), which held that Equal Protection did not protect the right of women to vote; and the 24th Amendment (1964) repudiated Breedlove v. Suttles (1937), which upheld the use of poll taxes to keep poor people from voting.
Today, Citizens United cries out for constitutional correction, because modern democracy requires a wall of separation between the awesome wealth of private corporations and political campaigns for public office.

All constitutional amendments seem impossible until they become inevitable, but this one is essential.

The Roberts court bulldozed this wall which, although in place for decades, was vulnerable because it was written into statute rather than into Constitutional bedrock. When the conservative bloc demolished the wall, and the U.S. Circuit Court of Appeals for the District of Columbia wiped out any limits on what wealthy individuals can give to independent expenditure campaigns, these outbursts of judicial reactivism released a flood of billions of dollars into our politics.
Speaking both legally and politically, corporate political spending can have only one purpose: to earn back higher returns for investors by turning elected officials, the public and the government itself into effective tools of private corporate gain.
By converting every corporate treasury in America into a potential political slush fund, the court has endangered not only the integrity of our political institutions but the fairness and competitiveness of our market economy. Businesses should thrive by virtue of their creativity rather than the volume of their campaign spending and the number of lobbyists they employ. Adam Smith would be just as appalled as Thomas Jefferson or Franklin D. Roosevelt at this state of affairs.
A plutocratic corporate state favors huge corporations that have a symbiotic relationship with politicians and government — think of the military-industrial complex, big Pharma, the energy industry. Free-market economists are warning us that incumbent “extractive” industries like these use political power to monopolize the market, crush competition and distort public priorities. They are urging us to “save capitalism from the capitalists.” But, to do so, we first have to save the Constitution from the Supreme Court.
All constitutional amendments seem impossible until they become inevitable, but this one is essential. An amendment to empower Congress and the states to reasonably regulate campaign contributions and expenditures will allow us to restore, on firm constitutional ground, the wall of separation between corporations and elections and some semblance of political equality between the rich and everyone else.
It will protect the public’s imperiled interest in campaign finance disclosure and our nearly obliterated interest in building public financing regimes that make publicly financed candidates minimally competitive with candidates bankrolled by big private bucks.