U.S. Supreme Court decision ignited grassroots effort to amend the Constitution

In the fight over corporate influence in politics, one group is hoping the voice of the people can trump the allure of money.

Move to Amend South Central Indiana is part of a national movement pushing for an amendment to the U.S. Constitution to restrict the cash flowing into elections from corporations and super PACs. Their goal is to pass an amendment that would overturn the U.S. Supreme Court’s Citizens United decision, which turned on the spigot of corporate spending.

Bloomington resident James Allison and his wife, former Bloomington mayor Tomi Allison, founded Move to Amend South Central Indiana. They have been speaking out against undue corporate influence for years, but after Citizens United v. Federal Election Commision, 588 U.S. 310 (2010), interest in their presentations and research spiked.
 

James Allison traces the rise of political spending to the U.S. Supreme Court decision in Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). In particular, he pointed to the headnote, written by the court reporter, which he said has been “fraudulently cited” as the basis of corporations getting the rights of individuals.

Passing an amendment can take years, but James Allison said MTA members are willing to work as long as necessary. They believe petitions with millions of signatures and resolutions passed by municipal governments will sway Congress into action.

“This is how serious we are about this,” he said. “We’re not going anywhere.”

Cleaning messy rules

The fight is arising over Citizens United, in which the court ruled political spending is protected speech and therefore the government cannot prevent corporations and unions from giving money to either support or denounce candidates seeking office. These organizations are restricted from contributing directly to a candidate’s campaign but can try to influence the public by other means.

Citizens United did not usher in the era of corporate spending in politics, it just made it easier, according to Lloyd Hitoshi Mayer, associate dean for academic affairs and professor at Notre Dame Law School.

Prior to the landmark decision, the rules for political contributions were very complicated and usually required sophisticated legal help to maneuver. A violation could have led to a federal felony charge.

Citizens United made contributing much cleaner for corporations and unions by establishing clear rules of what is and is not permitted. The psychological effect of the decision was significant, Mayer said. No longer did corporations and unions have to be nervous about making a political contribution.

Outside corporations and unions, the decision had a different kind of psychological effect. Many voters fear the money that could now flow into politics will diminish the power of people in favor of faceless entities.

Shortly after the ruling was handed down in January 2010, Move to Amend was founded. The nonprofit now has more than 150 local affiliates and endorsements from several thousand additional groups, according to David Cobb, national spokesman for MTA.

As its name suggests, the mission of the organization is to amend the Constitution. On its website, MTA has posted its proposed amendment. In broad terms, the amendment states a corporation is not a person and therefore is not entitled to the constitutionally protected rights of natural persons; and money spent to influence elections is not speech subject to the freedom protected under the First Amendment.

To remedy the problems induced by Citizens United, the Constitution has to be amended, Cobb said. Any federal law limiting corporate political donations could be overturned by the courts with no chance to appeal.

The judicial branch is an unelected, unaccountable body, Cobb argues, so it is not the appropriate role of the court to create new policy. That refrain against judicial activism is likely responsible for the group’s appeal to individuals all over the political spectrum.

“We have Democrats, Republicans, Greens, Libertarians – all part of a coalition of people who don’t agree on a lot but do agree corporations do not have constitutional rights and money is not speech,” Cobb said.

Scandal likely coming

Move to Amend has a simple strategy to reach its goal: Run a grassroots campaign by getting local municipalities to pass resolutions supporting the amendment which, they believe, will pressure Congress into action. To date, more than 450 city and county governments across the country, as well as a handful of states, have adopted resolutions advocating for the amendment.

Currently, the Bloomington City Council is the only government body in Indiana to have passed such a resolution, according to the MTA website.

Move to Amend South Central Indiana is now working to raise awareness of the amendment so other Hoosier cities and towns will follow Bloomington. In conjunction with the outreach effort, the group held a rally Jan. 18 of about 50 people at the Birch Bayh Federal Building and United States Courthouse to mark the third anniversary of the Citizens United decision.

At the Indiana University Maurer School of Law, professor of law Daniel Conkle harbors serious concerns about Move to Amend’s proposed language. Among the problems he pointed to was the removal of due process rights for corporations. If, for example, the government wants to build a road that transects a company’s property, under this amendment, the government could take the land without giving any compensation.

“They’ve written an amendment that seemingly is way too broad and goes beyond concerns expressed by the Citizens United decision itself,” he said. “I think there’s no chance in the world this amendment will be ratified.”

However, Move to Amend notes the language is only a suggestion. Cobb explained a constitutional response to Citizens United is a political question that is best decided in the political process. Should any amendment offered the Congress fall short, then the public can hold the elected officials accountable.

Also working to influence Congress, but in the opposite direction, is the Club for Growth, a Washington, D.C.-based 501(c)4 organization led by former Indiana 2nd Congressional District Representative Chris Chocola.

Corporations and unions may have benefited from Citizens United, but advocacy groups like Club for Growth got a boost from SpeechNow.org, et al. v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010). Building on Citizens United, the U.S. Court of Appeals for the District of Columbia Circuit held that contributions from independent political organizations going directly to endorse or oppose candidates for federal office cannot be limited.

This decision opened the door for the creation of super PACs and Club for Growth led the way by establishing the first one, Club for Growth Action. During the 2012 election, Club for Growth Action collected and spent about $20 million.

Through the super PAC, Club for Growth is “able to receive more money because people want to participate in democracy,” said Barney Keller, spokesman for the Club for Growth. “Super PACs allow them to pool their money and have influence.”

In fact, Club for Growth is in favor of removing all limits on political spending. Keller called campaign contributions “one of the purest forms of speech” and compared government rules restricting donations to tyranny.

The flow of money into politics is unlikely to decline unless Congress reigns in contributions or requires substantial disclosure of campaign donors. Capitol Hill did enact legislation clamping down on political contributions and spending in the 1970s after Watergate, the abuse of campaign dollars that led to the resignation of President Richard Nixon.

Although an incident would not have to be on the scale of Watergate, Mayer thinks it will take some kind of wrongdoing to spur Congress to act.

“I think that with the current make up of Congress,” Mayer said, “there’s not going to be any federal law (addressing contributions) until there is a significant scandal, and there most certainly will be.”•