The Economy We Want Starts With a Constitutional Amendment

A more democratic and equal election system is the first step toward a more democratic and equal economy.
harrington_390_nobolt.jpg

YES! Illustration by Jennifer Luxton.

What can the new economy movement learn from Senator Bernie Sanders’ epic win in the New Hampshire primary? The big takeaway for system-change advocates came just a few minutes into his victory speech when he told a cheering crowd, “We have sent a message that will echo from Wall Street to Washington, from Maine to California, and that is that the government of our great country belongs to all of the people and not just a handful of wealthy campaign contributors and their super PACs.”

“The government of our great country belongs to all of the people and not just a handful of wealthy campaign contributors.”

Bernie’s recent emphasis on campaign finance reform echoes the central argument of another Democratic presidential hopeful who never had the opportunity to make his case on the national debate stage: Lawrence Lessig. A law professor at Harvard, Lessig ended his bid for the Democratic nomination in November, after the Democratic National Committee kept him out of the debates. For Lessig, campaign finance reform is the issue that trumps all others.

“Yes, the policies the Democrats are pushing are the future of America,” he told Politico. “But we won’t get any of them until we fix this democracy first.”

Lessig is out of the race, but Sanders is keeping the issue alive. And Sanders’ comments in New Hampshire were particularly timely, falling in the wake of a grim milestone for American electoral democracy: the sixth anniversary of the Supreme Court’s disastrous Citizens United decision.

In the aftermath of that ruling, which equated money with free speech, big corporations and the super-rich have consolidated their already-substantial influence over our political process. The legalized system of bribery that Citizens United condoned allows those with the most money to buy elections, ensuring policies that align with their elite interests at the expense of the average citizen. And this isn’t just populist rhetoric. In 2014, professors from Princeton and Northwestern looked at thousands of federal policy decisions over a 20-year period. They found that a law had about a 50 percent chance of passing if it was favored by 80 percent of rich households, whereas the average voter’s views had virtually no impact.

Sanders is right that shifting the country away from this oligarchic path will require a “political revolution.” And here, Sanders has one-upped Lessig by calling for a constitutional amendment to solve the crisis. Lessig, for his part, has called such an amendment a “fantasy” and prefers legislative reforms. But the truth is that, without an amendment to permanently reverse the Citizens United decision and ensconce the principle of electoral equality in our country’s most basic law, Lessig’s call to “fix this democracy” will itself amount to fantasy.

A new democracy for a new economy?

It’s not just Bernie’s political revolution that depends on a constitutional overhaul. The new economy movement’s “checkerboard revolution” won’t get far without it either. As I’ve argued in a prior post in this series, checkerboard revolutionaries cannot expect their patchwork of economic innovations to amount to widespread change until they develop a strategy for winning transformative policies. The axis of the financial world won’t shift from Wall Street to Main Street without a big push from government.

In short, checkerboard revolutionaries need to take a cue from Sanders and join the fight to restore our democracy with a constitutional amendment.

Of course, this raises the question: With Congress controlled by the very politicians who benefit from the corrupt status quo, how would a constitutional amendment be any more possible than legislative reforms?

Legislation can be thrown out by the decisions of judges who are not accountable to the electorate, whereas amendments cannot.

Let’s first consider Lessig’s approach. During the 2014 midterm election cycle, he launched an innovative effort to use the system’s own momentum to bring it down, in a kind of electoral jiujitsu. One consequence of Citizens United was the birth of the so-called super PACs—shadowy organizations that can pool unlimited amounts of private funds to support candidates. So Lessig helped create a super PAC to end all super PACs. Called MayDay, this anti-PAC raises funds and uses them to support congressional candidates who favor the reform of election funding and to oppose those who don’t. MayDay spent about $7.5 million in 2014, much of it from wealthy Silicon Valley donors, in support of eight candidates in closely contested districts. The results were mixed, but the group was not discouraged. In 2016, MayDay plans to target a larger number of congressional races in an effort to secure the simple majority needed for legislative reform.

It’s a creative strategy. But one major (and possibly fatal) drawback is that the MayDay reforms would make public financing optional, not mandatory. That’s because they would rely on new legislation, not constitutional reforms. And, thanks again to Citizens United, only a constitutional amendment can put a hard cap on private electoral spending. Moreover, as we saw with Citizens United itself, legislation can be thrown out by the decisions of judges who are not accountable to the electorate, whereas amendments cannot.

The problem with amendments, of course, is that enacting them is a far bigger task than passing legislation: While bills require a 51 percent majority of both houses, amendments require a two-thirds supermajority to pass (as well as ratification from 38 states). Just consider what happened with the Equal Rights Amendment, which passed Congress in 1972 but lapsed a decade later when proponents fell three states short of ratification.

So if we’re talking about pushing an amendment through Congress, Lessig is probably right: That would amount to a fantasy. But it turns out that the Constitution offers us another way, and a group called Wolf PAC has been busily pursuing this option for the past five years.

An amendment that fixes our broken electoral system will be just the first step in the effort to restore and strengthen our democracy.

This alternative approach lets the state legislatures do an end run around Congress by passing resolutions that call for a national constitutional convention. Since its launch during Occupy Wall Street in 2011, Wolf PAC has gotten its “Free and Fair Elections” resolution, which calls for a constitutional convention, passed by legislatures in four states: California, Illinois, New Jersey, and Vermont. They’ve also moved the ball halfway to the goal line in six other states—both red and blue—where, as of this writing, the resolution has advanced through one legislative house and is awaiting action in the other. These legislative gains demonstrate that, far from being a fantasy, Wolf PAC’s strategy for amending the constitution is a politically viable one.

Of course, to trigger a convention it’ll need to garner victories in 30 more states to meet the Constitution’s requirement that two-thirds of the states back the move. But Wolf PAC’s operations seem robust enough to get the job done.

Active in all 50 states, the organization claims the support of more than 20,000 volunteer members, who contribute to the cause through not only monthly sustaining donations but also the relentless drumbeat of citizen lobbying. For instance, in my home state of New York, Wolf PAC volunteers participate in the “Rep A Day” initiative, which mobilizes volunteers to make calls to their state legislators’ offices. The organization also benefits from regular publicity through the popular YouTube political show The Young Turks, whose host, Cenk Uygur, founded the PAC.

Critics worry that a constitutional convention might not be limited to election funding. A convention, they say, could consider any modification to the Constitution, putting all sorts of rights in danger.

But there is good reason to think that that would not be the case. For one thing, Wolf PAC’s resolution specifies that the purpose of the convention is to clean up the campaign finance system and explicitly mentions Citizens United. And history suggests that Congress would likely go ahead and pass the amendment itself before allowing a convention. That’s what happened in 1911-12, when Congress passed the 17th Amendment, which provides for direct election of Senators.

Beyond free and fair elections

But an amendment that fixes our broken electoral system will be just the first step in the effort to restore and strengthen our democracy. Eventually, broader constitutional changes and new laws will be needed to do that.

For example, the common theme of the rash of voter suppression laws that has erupted in the last several years, is the way they target the poor—and particularly people of color. Requirements for photo IDs, reductions in the time period for early voting, and restrictions on voter registration options are known to disproportionately impact low-income people of color. It is simply not possible for these people to become full and equal citizens if trends continue in this direction.

This is why subsequent constitutional reforms should not only explicitly prohibit measures that make it more difficult for citizens to vote, but should expand the opportunities to do so as well. Ways to supercharge the franchise include moving Election Day to the weekend, making it a multi-day process, making Election Day (or days) a national holiday, and requiring employers to give their workers paid time off to vote.

We could also learn from recently passed California and Oregon laws that make registration automatic for all eligible voters when they obtain a driver’s license or other state-issued ID. Sanders has proposed a federal version of this framework that would require other government agencies to participate in the program of automatic registration too.

A Free and Fair Elections amendment is an essential step to enabling this broader process of change to unfold.

But these measures only go after direct limitations on the right to vote. Indirect ones include lack of access to quality education, health care, and child care; insufficient reproductive rights for women; and lack of a guaranteed basic income. As political scholar David Held writes in his classic book Models of Democracy, a truly democratic constitution must not only enumerate such rights but also require the government to make sure the people can enjoy them.

In short, a more democratic and equal political system goes hand in hand with a more democratic and equal economy. You can’t have one without the other. So the new economy movement must also be a new democracy movement and rally its checkerboard revolutionaries behind the fight for fundamental constitutional and legal reforms.

A Free and Fair Elections amendment is an essential step to enabling this broader process of change to unfold. The elimination of corruption from the campaign finance system opens the door to a much more democratic Congress, which could pass sweeping legislative reforms without fear of reprisals from wealthy campaign donors.

Such a revolutionary transformation will be hard-won, no doubt; but American revolutionaries have snatched democracy from the claws of aristocratic power before, and we can do it again. The Constitution, as esteemed as it is by Americans across the political spectrum, already has 27 amendments. It is a document written by people, not gods, and We the People can and must change it to meet our evolving needs.