It was no surprise that the Senate’s proposed “Democracy for All” amendment to the constitution did not pass Thursday. It takes 67 votes to pass an amendment in the Senate. So Thursday’s vote of 54 in favor and 42 against spelled defeat.
Senators who voted against the amendment will need to explain their actions to their constituents.
But the vote represents a giant leap on the road to overturning the Supreme Court’s Citizens United decision, which opened the floodgates to money in elections.
Here are three reasons for advocates to celebrate.
1. The vote demonstrates the power of grassroots activism
The Senate’s 54 to 42 on the “Democracy for All” amendment was widely attributed to the activism in towns, cities, and states across the country. Since January 21, 2010, when the Supreme Court handed down its decision in Citizens United, 16 states and more than 550 towns and cities have passed resolutions recommending a constitutional amendment.
Advocates are undaunted by the Senate’s failure to pass the amendment. John Bonifaz, president of the nonprofit Free Speech for People, noted, “It’s just a matter of time. We will get the 28th Amendment.”
2. It puts pressure on politicians across party lines
At the national level, regulating money in politics is a highly partisan issue. Not a single Republican voted for the proposed amendment, introduced by Democrat Tom Udall of New Mexico. But among the public, that partisan divide disappears.
The public advocacy group Public Citizen recently released a poll conducted by leading Democratic and Republican pollsters. The numbers showed that Republicans, Democrats, and Independents all share disgust at the outsized influence of moneyed interests in our politics. Of the sample of 800 “likely voters,” 61 percent opposed the Citizens United decision, including 58 percent of Republicans. A whopping 78 percent (including 71 percent of Republicans) said reducing the influence of money in politics and elections was important. In response to arguments that restricting money in politics and elections is an assault on free speech, just 25 percent (including 38 percent of Republicans) agreed.
The Senate vote puts 100 senators on record. Those voting against the amendment will need to explain their actions to their constituents.
3. It provides language that empowers the states and defines corporations as artificial legal entities.
The proposed amendment specifies that not only the Congress but also the states may regulate “the raising and spending money in politics.” If this version of the amendment were to become law, it would mean that states would be able to move ahead, regardless of stalemates at the national level. It seems likely that many states would do so. Already, 16 of them have recommended a constitutional amendment to restrict money in politics.
The framers of the Constitution made sure it would not be easy to pass a constitutional amendment.
The amendment also defines the nature of a corporation. Currently, nowhere in the Constitution or in any of its 27 amendments does the word “corporation” appear. The Senate’s amendment would introduce the word for the first time and in doing so define the corporation as an artificial legal entity. The amendment states:
Congress and the States … may distinguish between natural persons and corporations or other artificial entities created by law, including prohibiting such entities from spending money to influence elections.
Most of us have never doubted that humans are different from corporations. But all the way up to the Supreme Court, some judges have treated corporations as though they have the same constitutional rights granted to natural persons. If this amendment eventually passes, the distinction between natural persons and corporations would be written into the highest law of the land.
Not everyone feels the amendment goes far enough. While the Senate’s “Democracy for All” amendment is backed by many organizations working to get big money out of politics, the advocacy group Move to Amend wants wording that specifies that corporations do not have constitutionally protected rights.
This struggle will not be led by the Senate. It will be led by the people.
Senator Jon Tester, a Democrat from Montana, has introduced a “Peoples Rights” amendment (SJR-18), to do just that. It is meant as a companion to the Udall amendment just voted on, but so far it has not garnered the same level of support. In the House, a parallel pair of amendments have been introduced by Jim McGovern, a Democrat from Massachusetts.
No one expects two-thirds of the House to pass an amendment in the short term. But the pressure is on. As The New York Times stated in an op-ed about the issue, a constitutional amendment “…is a last resort to fix a grave civic problem. But the backers of this amendment recognize that the nature of American democracy is at stake.”
The framers of the Constitution made sure it would not be easy to pass a constitutional amendment. They specified that two-thirds of the House and Senate must vote for one, which then must be ratified by three-fourths of the state legislatures. And we know moneyed interests do not want their power curtailed and will fight the amendment tooth and nail. So there is a long road ahead.
The struggle will not be led by the Senate. It will be led by the people.
I like to remember that the fight for women’s right to vote began at Seneca Falls in 1848. The 19th Amendment giving women the franchise passed in 1920. It took 72 long years.
In an age of instant mass communications, this campaign is moving far faster than that one. But it’s helpful to keep in mind that we’re just over four years down the road. We’ve come a long way. Time to take a moment to celebrate.