The 28th Amendment?

On January 21, 2010, the Supreme Court handed down a decision that critics—including President Barack Obama—say opens the floodgates to corporate buy-outs of U.S. elections. According to the Citizens United decision, giving money to political campaigns is a form of speech protected by the U.S. Constitution, and corporations are entitled to the same constitutional protection as human beings.

The responses to the decision were immediate and wide ranging. Nearly 80 percent of those polled in April disapproved of the decision (including a whopping 78 percent of Republicans). One of the most important legislative responses is a constitutional amendment introduced by freshman Congresswoman Donna Edwards of Maryland. YES! Magazine executive editor Sarah van Gelder spoke to Rep. Edwards about what she hopes to accomplish and why she feels this issue merits changing the U.S. Constitution.

Sarah van Gelder: What is your objection to the Supreme Court ruling on Citizens United?

Donna Edwards: I think it upends about 100 years of settled law dealing with corporate expenditures for campaigns. I think that it’s a dangerous precedent.

Under current law, a corporation has the ability to set up a political action committee (PAC) and solicit directly for it and then to spend on campaigns. What this changes is the ability of corporations to reach directly into their own treasuries, and spend unlimited amounts for the election or defeat of a candidate.

I think it sets up a circumstance where the voices that we’ll hear in a campaign will be coming from corporations, and you’ll go, “Where are the people?” I think it’s dangerous for democracy.

Sarah: Can you give me some specific examples of things you think will be different in this coming election as a result of this ruling?

Donna: Already we’ve been able to see it. The Chamber of Commerce, for instance, is soliciting directly from corporate treasuries, saying that they’re going to make independent expenditures to the tune of about $60 million during this election cycle. That’s an extraordinary amount of money. When you combine that with other business groups and you look at the amount of money involved, it’s potentially more than either of the party committees are going to spend. I think that this drowns out the voice of ordinary people, and it’s a dangerous road to go down.

Sarah: Are there specific issues that you think are particularly going to be affected by the unleashing of corporate spending in terms of what is doable in Congress?

Donna: The Chamber has already talked about going at members who voted, in their view, the wrong way on health care reform—that is for health care. Right now, we are in a hot debate over financial regulation. I think there’s a potential that institutions affected in the financial sector could reach into their deep pockets as well, to spend out of their treasuries. It’s too early to know if they will do this directly, that is, Corporation X saying, “I’m going to put my brand name out there to spend on a campaign.” But they’ll do it through these sort of tertiary entities, like the Chamber or other organization front groups.

I think that, given the Court’s ruling—and I’ve read it a number of times—there are a very limited number of legislative actions that would be acceptable to the Court and pass constitutional scrutiny. Which is why I introduced House Resolution 74.

Sarah: So you feel that an amendment, rather than legislation, is what it’s going to take.

Donna: I do. I think the Court made it very clear that, to the extent that one was to use legislation as a vehicle, the disclosure route is about the only avenue that’s left. The Court has said in effect that corporations have the ability to spend directly on campaigns; that it’s their first amendment right.

If you look at just 2008, Fortune 100 companies had combined profits of about $600 billion. If in 2008, they’d spent only 1 percent of their profit, that would have been more than a lot of PACs and political entities—like the Democratic and Republican parties—spent together on the election. So it doesn’t take a lot, at least out of the Fortune 100. It’s not the small companies that play independently in the legislative and political process. It’s the big guys.

Sarah: As a matter of principle, why shouldn’t corporations be treated as people?

Donna: Well, because they’re not. I mean, I’m a person and you’re a person, but a corporation is not a person. And I dare say that if you asked 10 people on the street, they don’t think that a corporation is a person. They’re creatures of legislation, they’re creatures of rules, they’re creatures of the market, but they’re not people. And people vote in this country.

Sarah: Your amendment is related to First Amendment political speech, but it still would permit corporations to have First Amendment protections for commercial speech, for example. Why did you choose that route?

Donna: Because I do think that political speech is different. If a corporation wants to market its product, we have the ability through legislation to police that. We have the ability not to let dangerous products on the market or to allow products on the market that make claims that aren’t correct or justified. So, I think we’re able to regulate that kind of speech. Political speech is different. This is about the fundamentals of our democracy. It’s about the way persons engage in our politics, and I do believe that we have to restore a set of values in our system that says we value the voices of ordinary people and we don’t want them drowned out by corporate political speech.

Sarah: What do you think are the prospects of getting two-thirds of both houses of Congress and three-quarters of the state legislatures to adopt this amendment?

Donna: We’ve amended the constitution 27 times, and this 28th amendment is no different. Some constitutional amendments have gone rapid-fire through the Congress, and I think that we have the potential for that kind of momentum here.

We need 290 votes in the House of Representatives. We need 67 votes in the United States Senate. I think that whenever real people stand up and make their voices heard in their states and in their congressional districts, it’s tough to predict how things will happen, and I do believe in the power of people.

I’ve not been one frankly, who’s been a fan of constitutional amendments. There’ve been many times in my life as a donor and as an activist when people have approached me about doing constitutional amendments, and I’ve always said, “Well, wait. What’s the legislative alternative?”

In this instance, I don’t think there is a viable legislative alternative. It’s why I’ve gone the route of a distinct amendment that deals directly with the situation that the court has left us with. We already have 24 co-sponsors in the early days of the amendment, including a range of perspectives and people, and I think that the more people hear about this across the country, it will indeed spread. I think it’s a very powerful message, that we want people, and not corporations, dominating our elections and our public policy.

Sarah: In terms public opinion polls, Republicans as well as Democrats oppose the Supreme Court’s Citizens United decision. Are you getting Republican co-sponsors?

Donna: We haven’t gone that route yet, but I’ll tell you one thing. We have Republican people. You look at the polls, and the numbers are extraordinary in terms of people who think that we need to do something very seriously about changing the course that the court has directed us on in the Citizens United decision. When I’m on radio and television—which I do a lot on this issue—people from the left to the right, from the Tea Party to the peace activists to everybody in between, strongly support this idea.

As people understand this is an alternative, they grab on to it. So I have every hope that we’re going to be bringing on Republicans and Democrats over the course of this time.

I know that there have been a number of legislative proposals, and I’m supportive of them. My reading of the court’s decision is that those alternatives, frankly, are quite limited. Disclosure alone, isn’t going to help. When you have a corporation that can wait until the 11th hour to spend for or against a candidate, all the disclosure in the world is not going to make a difference. That’s the challenge. If a corporation decides to spend a day or two before an election, and you’re the candidate that that is being spent against, merely publishing on a website or publishing on an ad itself who’s supporting it … I mean ads are only so long and you can imagine that just going by the screen and nobody knows where it came from. You have no control over that as a candidate; no way to counteract it.

So although I support some of these legislative alternatives, I do think the court has actually carved out a clear path and said, “If you want to do this, you’ve got to do it by constitutional amendment. The Constitution, as it currently exists, with its amendments, allows a corporation to spend out of its treasury, and if you want to fix it, you’ve got to change the Constitution.” And that’s what we’ve done here.

I think that any of these bill are going to end up in court and be challenged. When you think of the time period that it takes for a bill to pass and be signed into law and for it to be challenged in court and be decided by the Supreme Court—in that same time, simultaneously, we’re going to be working on a constitutional amendment to fix it.

Sarah: One other question: Do you have any sense that the states are ready to step up to this? Getting a constitutional amendment will require a lot of states to take action.

Donna: I think there are several steps in this process. It’s not time for the states to weigh in yet.

I have to tell you that a number of states are concerned about what the Citizens United ruling does to their state campaign finance laws. We’ve got a lot of states with laws dealing with campaign financing, expenditures by corporations, expenditures by individuals, and this up-ends all of that. I think as we see more state legislatures begin to grapple with how to fix this, many state legislators and governors are going to come to realize that if they want their state’s campaign finance laws to work, then they’re going to have to do this, too.

Sarah van Gelder interviewed Donna Edwards for Water Solutions, the Summer 2010 issue of YES! Magazine. Sarah is executive editor for YES! Magazine.