“It was as if I had jumped into the sewer,” Senate Majority Leader Harry Reid (D-NV) said of running for re-election after the U.S. Supreme Court’s Citizens United decision came down in 2010. The decision that invalidated limits on the free flow of corporate and other campaign money forced everybody to the lowest common denominator, he said, amplifying the influence of the wealthy and muting the voices of everybody else.
Reid would prefer not to run for re-election this way. But despite the disdain of Reid and most other Democrats for Citizens United and its progeny, many have shied away from proposals to amend the Constitution. That’s because passing that or any other constitutional amendment is virtually impossible and viewed as a futile effort, requiring the support of either two-thirds of both houses of Congress, or passage by legislatures in three-fourths of states.
On Thursday, Reid added his significant heft to the call for a constitutional amendment, saying he would use his power as majority leader to both hold hearings on the amendment proposal and call a vote on the Senate floor.
Reid told BuzzFeed that former U.S. Supreme Court Justice John Paul Stevens persuaded him to join the effort, after Stevens called for the amendment earlier this year in his new book. Reid, who decides what votes get called as majority leader, said he will now hold hearings on the amendment proposed by Sen. Udall, as well as call a vote on the House floor.
“The Supreme Court has equated money with speech, so the more money you spend the more speech you get. What kind of a system is that?” he said Thursday during a floor speech. Reid focused his jabs on the “hostile takeover of the American democracy” by billionaires Charles and David Koch. While their spending is “calculated to make them even richer,” he railed, “the Kochs and their Republican followers in Congress continue to assert that these hundreds of millions of dollars are free speech.”
Justice Stevens, who authored the scathing dissent in the Citizens United decision, explained his position to the New York Times this way: “The voter is less important than the man who provides money to the candidate. That is wrong.”
The amendment movement was also revived last month by U.S. Supreme Court’s sequel to Citizens United, McCutcheon v. FEC, which bolstered the power of the wealthy to spend on as many elections as they want. Stevens said Chief Justice John G. Roberts’ rhetorical characterization of the case as about “the right to participate in electing our political leaders” was misstated. The plaintiff in the case, an Alabama businessman, wanted to spend money on the elections of 12 candidates outside Alabama. “The opinion is all about a case where the issue was electing somebody else’s representatives,” he said.
The proposed amendment would explicitly give Congress the authority to regulate spending in federal elections. This would override five justices’ interpretation of the First Amendment as imposing almost absolute protection on election spending.
Since 2010, movements to pass a constitutional amendment overturning the U.S. Supreme Court’s decision in Citizens United v. FEC have gained significant ground, with a number of states passing resolutions calling for a constitutional amendment. As one California legislator put it who introduced the bill that passed his state: “No one is underestimating how difficult it is, and justifiably so, to amend the Constitution. But being silent is worse.” And a number of top Democratic senators have proposed amendments in Congress for several years now, including Tom Udall (NM), Michael Bennett (CO), Tom Harkin (IA), Dick Durbin (IL), Chuck Schumer (NY), Sheldon Whitehouse (RI), and Jeff Merkely (OR).
But in the almost certain event that a constitutional amendment is never ratified, lawmakers also have also sought unsuccessfully to pass other laws that fit within existing American jurisprudence, including the DISCLOSE Act, which would at the very least require sunlight on unfettered election spending.