Reverse Citizens United with an Article V convention.

Photo by Anthony Garand on Unsplash

If you’re not familiar with Citizens United, it is a Supreme Court decision that allows basically unlimited, secret money from special interests to be spent on elections. Campaign finance was not exactly great in the United States before Citizens United, now it’s a fundamental threat to our democracy.

A growing number of states (5 at last count) are petitioning Congress to call a constitutional convention allowed under Article V of the U.S. Constitution to propose an amendment to reverse the Citizens United decision. States are asking for this because, so far, Congress will not act…or at least not in the form of constitutional amendment.

The Democrat-controlled House did push though H.R. 1 which has a lot of promise to improve campaign finance reform, but not fix it; and the bill has little chance of passing in the Senate or being signed into law by the President. That means a groundswell of interest from state legislatures to amend the U.S. Constitution is still a viable option, but it’s a process of which even policy experts have a murky understanding.

Article V Convention: In the Weeds

The process is simple once you take the time to study it. Article V of the Constitution (which is all of 143 words by the way) establishes the ways you can amend the Constitution. Every time the U.S. Constitution has been amended the process started with two-thirds of both chambers of Congress passing an amendment and sending it to the state legislatures to approve it. Three-quarters of the state legislatures (38 states at current count) have to approve any amendment before it is ratified, no matter how it is proposed.

An Article V convention supplants Congress in that process… sort of. The mechanism to call for a convention is that two-thirds of the state legislatures (34 states) can petition Congress to call a convention that would propose an amendment to the constitution. Any amendment proposed by an Article V convention would still have to be ratified by three-quarters (38) of the state legislatures. That’s worth repeating because this is where fear-mongering usually starts.

Many special interests, often those afraid of what a convention might propose, ignore the fact that legislatures still have to ratify an amendment proposed by an Article V convention. They pitch an argument against conventions that seems to suggest once a convention proposes an amendment, that’s it. It’s law.

It’s not.

And that’s about all we know for sure because this process has never been used in the history of the Republic… but don’t fear the unknown just yet.

Photo by Louis Velazquez on Unsplash

State legislatures are starting to exercise their power to call for an Article V Convention. California, Illinois, New Jersey, Rhode Island, and Vermont have all passed resolutions calling for such a convention to overturn Citizens United.

There are a lot of details to iron out, but the real debate is whether Congress (when calling the convention once it’s petitioned to do so and while setting up its logistics) can limit the scope of the convention to a specific purpose.

I would also offer my own layman’s legal opinion that these petitions, even if you get to two-thirds of states supporting them, do not actually compel Congress to rush in calling a convention in any way. Congress could take a theoretically unlimited amount of time to call a convention — if they ever did it at all.

Congress will probably not act unless they are pressured to do so, and fighting for a constitutional convention will put pressure on Congress to act themselves without facing the unknowns of an Article V Convention.

Q&A: The Concerns

Let me detail the concerns I have seen and heard and respond to them.

A constitutional convention could offer up other amendments that we do not want.

Probably not. For one thing: there’s no reason to think delegates to such a convention would be paid or have any interest in staying longer than is necessary. Second: many legal scholars believe Congress, once authorized to call a convention for a specific purpose, can limit the scope of the convention. And finally: you still need three-quarters of the state legislatures to ratify any amendment proposed by the convention. It’s not an express lane to amendment ratification. It’s just a conduit to work around Congress.

We don’t know what will happen or who will be in charge of the convention.

The same is true every time we vote to send a Representative or Senator to Congress… we don’t know if the party we support will be in the majority or what they will vote on. I think not knowing who will be at the convention is a legitimate concern, but to me it is outweighed by the need to act.

We can legislate at the state- and local-level to chip away at Citizens United.

Not really. While the legislatures can control campaign finance for candidates for state office (Governor, legislature, etc.), they do not have jurisdiction for congressional and presidential campaigns. Moreover, federal elections all still take place in our communities to some degree and national money influences local politics even when they don’t adhere to local rules.

If we confirm a Supreme Court justice that would overturn Citizens United that would do the trick!

That would! Now all we need is a President that will nominate such a justice, a Supreme Court vacancy, a cooperative United States Senate, and someone to bring another lawsuit forward. To some degree all of that is easier than a constitutional convention but it also would violate rules of legal precedent (the Supreme Court likes to adhere to previous rulings even when the seats change over) and it opens up the door for a future reversal of our reversal. Better to carve an amendment in stone.

We don’t know how a constitutional convention would work. It’s too risky.

More on this later, but a constitutional convention might do damage to our democracy whereas Citizens United definitely is doing damage to our democracy right now. The risk of inaction is greater than the risk of the unknown.

Congress would have to agree on a plan for a convention, and agreement is not something Congress is known for. If they are compelled to call a convention they will be under more pressure to pass an amendment instead, and I have faith that if they must call a convention a reasonable (and probably very uneventful) format will be approved.

Why don’t we spend this energy on electing members of Congress that will vote for an amendment?

Please get started. That is a much better path but at the moment there’s not enough momentum for it; state resolutions help build that momentum.

The Status Quo

A constitutional convention is not a silver bullet, it’s not the cure to everything wrong with campaign finance. However, if the status quo is unacceptable then a potential solution to it cannot be off the table. The risk of inaction is greater than the risk of putting new constitutional principles to the test. When special interest groups can use their resources to exert undue influence in an election, we all suffer. So if you hear a convention is too risky… remember that the damage being done to our democratic process right now is much worse than debating constitutional law.

Coloradan, American, Democrat… in that order. Husband, father to two daughters, and policy nerd.

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