How Do We Overturn Citizens United?


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To the 99%:

Nothing could enhance American democracy more than if Occupy Wall Street helped enact a 28th Constitutional Amendment to end the pretense that corporations are people who speak with money. A united 99% could absolutely halt this privatization of government.

There’s an important conversation going on about the goals of Occupy Wall Street since the November 15 eviction. The initial goal was to shift the national conversation away from an obsession with Washington and deficits to the oft-ignored fact that income inequality is devastating the middle class. The movement succeeded. Now that OWS and its supporters are planning its next steps, I have a suggestion—a plea, really.

I believe #OWS should plug into the nascent effort to enact a 28th Amendment to the Constitution to overturn Citizens United and Buckley v. Valeo, two of the worst decisions in our judicial history, right up there with Dred Scott. They weave two crazy concepts—corporations-are-people and money-is-speech—into the loony conclusion that corporations can buy democracy. The conservative wing of the Supreme Court decided to give more power to the most powerful people in America.

Talk about judicial activism! Only a satirist like Antonin Scalia could both argue that we have to follow the Founders’ original intent and then make believe that the Founders intended to include corporations—never mentioned in the Constitution, creatures of states given perpetual life to raise private capital for commercial purposes, not regarded as people by anyone in 1789—in the First Amendment.

Dylan Ratigan recently remarked that “campaign finance reform is everyone’s number two issue.” But government cannot produce a cleaner environment, more stimulus and growth, stronger bank regulations, universal health care and a jobs bill until the machinery of democracy is repaired. So long as the conservative wing of the Court allows the likes of Karl Rove, Sheldon Adelson and the Koch Brothers raise and spend hundreds of millions of dollars in local and national elections, we will have a government, as Joseph Stiglitz says, “of the 1%, by the 1% and for the 1%.”

You’d be forgiven for thinking that the prospect of rectifying this staggering imbalance on a Constitutional level is just too remote and uphill. But there have been 17 amendments since the Bill of Rights, usually enacted when a bipartisan supermajority and a popular grassroots movement overcome inertia.

Well, right now there’s a popular grassroots movement that can organize in Washington and every state Capitol almost overnight: Occupy Wall Street. As your general assemblies and policy committees seek consensus on specific goals, please consider including a “Stop Corporatism Amendment” on your very short list. True, the movement has compiled a substantive array of issues and goals, but the public can only get behind a few big issues at a time. Lenin said “bread, land and peace”; Reagan said “reduce taxes, defeat communism.” A movement that came up with “We Are the 99%” can now evolve from concept to content by “occupying” democracy.

Occupying democracy can include pushing Washington to adopt the kind of public financing of public elections that now work in Maine, Arizona and New York City. Those gave a boost to non-rich candidates who can then compete in elections. But what about building a ceiling over big business interests? Let them lobby, speak and donate, but not out of their trillions in corporate treasuries that drown out the voices of everyone else. Short of of a new justice and new decision, that requires not a federal statute but a federal amendment.

There are wonderful groups already engaged in this effort, including Common Cause, Public Citizen and Free Speech for People. Last November, six senators introduced a constitutional amendment, Senate Resolution 29, proposing an amendment “relating to contributions and expenditures intended to affect elections,” which needs a two-thirds majority in Congress to be sent to the states. But only OWS’s energy, guts and brand can create People-Not-Corporations groups in every state, either to enact a 28th Amendment or at  least mobilize opinion around the issue for future elections. Other than labor, only this movement can get boots on the ground to mobilize against big money in politics.

I’ve lived this issue over the decades, first working with Ralph Nader at Public Citizen, then raising millions of dollars as a candidate and enacting laws which advanced public financing – and, of course, running against the richest man ever to purchase office. That sequence leads me to two conclusions.

First, OWS could join and amplify the pro-democracy movement to enact a federal public financing law, ideally a constitutional amendment.

Second, at the Lincoln Memorial in 1957, Dr. Martin Luther King, Jr. implored, “Give us the ballot (Give us the ballot),” thus setting a voting rights agenda that culminated in the Voting Rights Act. If we don’t stop corporate money from nullifying the ballots we cast, all this progress will have been in vain. As a tidal wave of secret Super PAC money sweeps over the 2012 election and the movement contemplates its next steps, remember this: When it comes to flushing the crooked cash from politics, we can’t afford to wait.


Mark Green is an author, public interest lawyer and Democratic politician who served as New York City’s first Public Advocate.

A version of this article originally appeared on Huffington Post.


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