From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Craig Holman
Sent: Tuesday, March 01, 2011 2:25 PM
To: john.k.tanner@gmail.com; election-law@mailman.lls.edu
Subject: Re: [EL] Press Release: Story of Citizens United

The U.S. Supreme Court ruled on January 21, 2010 in Citizens United v. Federal Election Commission that corporations have the same First Amendment rights as people, and that they can spend unlimited amounts of money on elections. We think corporations aren’t people and should not be able to trample democracy. One key way to overturn this decision is through a constitutional amendment, which Public Citizen will pursue. Below are some questions you may have about such an amendment.

A: We’ve suggested a couple of possibilities at this point. One would state:

Another possibility would be:

These two possibilities would have somewhat different implications in practice, but both would permit Congress to regulate political spending by business corporations. There are other possible approaches. These suggestions are just the beginning of what must be a thoughtful discussion to determine the best language to protect real people’s right to speak freely and to protect the press from government censorship, while making clear that these rights do not extend to corporations’ speech (except for speech by the media).

A: The amendment language that we will suggest would not affect the media. Members of the media would retain their full First Amendment rights when they are engaged in publishing, broadcasting and similar activities. Just like other corporations, however, they would not have the right to sponsor campaign ads or make campaign contributions.

A: The problem we face now is that the Supreme Court has interpreted the Constitution to extend the First Amendment rights of real people to corporations. Congress cannot overturn a court decision based on the Constitution.

That’s not to say there aren’t things that Congress can and should do – like institute public financing for federal elections, which will give candidates the means to respond to unlimited corporate election spending, and put in place protections for shareholders so that corporate funds aren’t lavished on political campaigns without the consent of the real owners of the corporations. But those laws can only accomplish so much, and one thing they can’t do is directly limit corporate political expenditures.

A: We are pursuing several reforms. Public financing of elections, a shareholder protection act and a constitutional amendment go together as a package response to rein in the excessive influence that unrestricted, massive corporate expenditures can exert over our democracy. A constitutional amendment offers the long-term solution to address the other damaging effects on our society of treating corporations as if they’re entitled to the same rights to express themselves as real people.

A: There are a few ways to do it. An amendment has to be proposed either by a 2/3 vote of both houses of Congress, or else by a constitutional convention convened when the legislatures of 2/3 of the states so request. The amendment has to be ratified either by the legislatures of 3/4 of the states, or by conventions in 3/4 of the states, depending on which means of ratification Congress proposes. All of the amendments to the Constitution, of which there are now 27, were proposed by Congress, and all but one were ratified by state legislatures. The convention route has never been used for proposing an amendment, and was used only once for ratifying an amendment (the 21st, which eliminated Prohibition).

A: That’s hard to say. The first 10 amendments (called the Bill of Rights) were proposed and ratified within a period of two-and-a-half years. Most successful amendments have taken one to two years, although the amendment authorizing the income tax took almost four. Prohibition was ratified 13 months after it was proposed by Congress, and the amendment repealing it took only 11 months from proposal by Congress to ratification. The 18-year-old vote amendment was ratified in fewer than four months.

The most recent amendment to the Constitution – the 27th Amendment, prohibiting congressional pay raises from going into effect until after another congressional election – took more than 200 years to ratify: It was proposed together with the Bill of Rights and ratified in 1992.

Congress sometimes puts time limits on the ratification process. (The constitutionality of those time limits is itself debatable). The Equal Rights Amendment had a time limit and failed to win ratification after 10 years, as did an amendment to give congressional representation to the District of Columbia.

A: No.

A: Public Citizen’s Scott Nelson is one of the attorneys representing the key congressional sponsors of the McCain-Feingold law and co-authored their amicus brief.

Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue NE
Washington, D.C. 20003
TEL: (202) 454-5182
CEL: (202) 905-7413
FAX: (202) 547-7392
Holman@aol.com

-----Original Message-----
From: John Tanner <john.k.tanner@gmail.com>
To: Craig Holman <holman@aol.com>
Sent: Tue, Mar 1, 2011 5:11 pm
Subject: Re: [EL] Press Release: Story of Citizens United