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Five reasons why a constitutional amendment is the wrong way to get money out of politics

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Headlined to None 8/25/11

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The objective to get money out of politics is the highest priority issue, without which no democratic political agenda can succeed. Money in politics is at the root of all of the country's political and economic problems.

 Some who since Citizens United are discussing this issue have proposed the idea that a constitutional amendment should be pursued to get money out of politics. The idea that this is the best or even a good way to reach that goal is misguided. A constitutional amendment is unnecessary, insufficient, wasteful and otherwise an impractical and even dangerous idea.

 The only practical remedy is comprehensive legislation. Most briefly stated, a proposal for a constitutional amendment aims at the wrong problem. The constitution is not the problem; the problem is five plutocratic justices who, having corrupted the other branches of government by mandating a system of money in politics, has entrenched a plutocratic majority on the Court. They do not care about the Constitution or the rule of law. They have intentionally installed plutocratic rule and will continue to maintain this corrupt system until we the people act effectively to stop them.

 The constitution itself -- unamended -- shows us exactly how to do that. Here are the details comparing the proposal for a constitutional amendment with the infinitely preferable alternative of ordinary legislation.

 1.  A constitutional amendment is unnecessary

The Constitution (Art. I, Sections 4 & 5) already gives Congress the power to regulate and judge elections, provided only that they do not use that power to entrench minority rule contrary to the core democratic axiom of one person, one vote.  Prior to 1976 no Supreme Court had encroached on this power of Congress, because the "political question doctrine" had for nearly two centuries precluded them from doing so.  In 1976 the Supreme Court established a metaphor that "money is speech" as a way to intrude upon and limit Congress' power to guarantee the integrity of elections.

The Exceptions Clause (Article III, Sec.2, Cl, 2, Sentence 2) of the Constitution empowers Congress to take away from the Supreme Court any authority to make decrees overturning state and federal laws designed to safeguard the integrity of elections, or otherwise concerning elections. The Exceptions Clause is the means provided by the Constitution to defend from judicial tyranny the democratic authority of Congress, and of the people who elect Congress. This is a general power to make exceptions to the Court's appellate jurisdiction -- which is the basis for all relevant decisions the Court has made to undermine democratic elections, including five decisions since 2006 by the Roberts 5. The Exceptions Clause would certainly justify removing the Court from the decision of political questions, which were prohibited by the Court's own decisions prior to 1976.

    2. A constitutional amendment is insufficient, and would be less effective than comprehensive legislation because:

a) It is by nature far too brief to cover all of the detailed provisions that will be necessary to effectively remove money from politics. Detailed and comprehensive legislation addressing all aspects of money in politics would be needed to enforce any such amendment in any case.

b) By being inherently brief, abstract in literary form, and general, an amendment could be deliberately misinterpreted in its details by the same Supreme Court that has proven capable of twisting other provisions to its own anti-democratic ends. Those interpretations could open up loopholes not intended by those who supported and voted for the amendment. The Court is no stranger to this tactic. In the first Gilded Age the 14th amendment was distorted so as to protect corporations instead of its intended beneficiaries. Any constitutional amendment in the New Gilded Age could easily be treated the same way by the even more politicized and disingenuous Roberts 5.

  1. It is unwise to give this Supreme Court new constitutional text to interpret. Such text is subject to the Supreme Court's final word on its meaning (unless Congress can be forced to exercise its Exceptions Clause powers). If an ordinary law is misinterpreted by the Supreme Court, Congress can pass another law expressly reversing the Supreme Court's decision, rather than go through the lengthy process of amending the constitution just to overturn a bad Supreme Court decision. Unlike a law, a constitutional amendment on a subject within its jurisdiction turns over to the Supreme Court the task of finally determining what it means.  An amendment would give the Roberts 5, who have no fidelity to law, legal process, precedent or logic - only to their plutocrat sponsors, and who are the very cause of the problem,  the last say what the amendment means.

    By adopting the mistaken idea that the amendment was necessary to support a law, the Roberts 5 could use a distorted interpretation of the amendment to strike down key parts of the law as unconstitutional. Possibilities for mischief are limited only by the imagination of judges who have shown themselves to have very fertile imaginations in service of plutocracy, as well as the ability to create opaque and convoluted legal rationalizations in support of their anti-democratic political decrees. A constitutional amendment -- rather than taking power away from the Supreme Court, gives them power to determine the meaning of new constitutional text. A simple law leaves that power with Congress, and the people who elect them.

3.  Attempting a constitutional amendment is wasteful of scarce political capital because it would be many times more difficult and time-consuming than would enactment of a comprehensive law.

The constitutional amendment proposal diverts political capital to an impossible task.

A constitutional amendment process is far more difficult and time consuming than getting a single comprehensive law through Congress. In order to battle corporations and oligarchs to get an amendment passed it would be necessary to first get 2/3d's of the members of each house of Congress to vote against Congress' usual paymasters, and then also elect a majority of legislators in 38 states who would resist the growing temptations of political money. Money can be expected to battle any such amendment designed to take away its power at every stage of this process.

To pass comprehensive legislation that would in fact reverse Citizens United and the "money=speech" concept, while plugging all the loopholes by which money gets into politics would require only one law supported by a majority of Congress (provided this majority in the Senate first changed its rules to foreclose a filibuster on legislation involving election integrity.)

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A creative thinker on matters of public policy and art, and a principal researcher. Current focus of work is on the strategies democracies can use to protect against overthrow by corruption, with immediate attention to the mess being made by (more...)
 
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  As the roberts 5 decimated democratic elec... by Larry Kachimba on Thursday, Aug 25, 2011 at 10:40:06 AM
Does anyone really think the corrupt legislators w... by Hosea McAdoo on Friday, Aug 26, 2011 at 12:04:55 PM
Opening a Constitutional Convention, or otherwise ... by Nimueh Rephael on Friday, Aug 26, 2011 at 12:25:20 PM
not covered in the article. The Article V Conven... by Larry Kachimba on Friday, Aug 26, 2011 at 2:41:14 PM
You are correct Larry. It would be a colossal wast... by Howard Schneider on Saturday, Aug 27, 2011 at 9:15:36 AM
Tonight I will email (2nd time tonight) the Dylan ... by Jerry Ryberg on Monday, Aug 29, 2011 at 9:24:39 PM