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Fixing a Bad Supreme Court Decision

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Sensible, intelligent Americans are furious over the recent Supreme Court 5-to-4 decision in Citizens United v. Federal Election Commission that struck down limits on corporate spending in presidential and congressional elections. Those of us who wail against the corpocracy with its corruption of government could hardly believe that this decision could in any way be justified. A major reaction has been a number of groups calling for a constitutional amendment to fix the problem.

It helps to know that three current constitutional amendments resulted because of Supreme Court decisions that needed remedial action: the Eleventh Amendment (shoring up states’ legal immunity), the Sixteenth Amendment (authorizing a federal income tax), and the Twenty-sixth Amendment (assuring eighteen-year-olds the right to vote).

Among the current efforts has already received nearly 50,000 signatories to support is plan, particularly: Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.

Another active group is advocating: Corporations and other for-profit institutions are prohibited from attempting to influence the outcome of elections, legislation or government policy through the use of aggregate resources or by rewarding or repaying employees or directors to exert such influence.

Ultimate Civics, a project of Earth Island Institute, wants this: This amendment affirms that constitutional rights extend only to human persons. Corporations, partnerships, and other organization entities are not human persons and, therefore, are not entitled to constitutional protections.

Largely missing from all this attention to the need for a new constitutional amendment, however, is the recognition that Congress, already corrupted by corporate and other special interest money, is very unlikely – no, make that will surely never propose any such amendment. Nor will any congressional attempts at fixing the Supreme Court problem with legislation do what is needed. In fact, there has been an older movement to take all private money out of federal elections and go to total public financing, which would offer the benefit of opening up the US political system to competitive third party candidates. But this too has never received strong support.

What merits far more attention and support is the use of the alternative path to amending the US Constitution offered in Article V. However, the convention of state delegates option has never been used because Congress has stubbornly refused to obey this part of the Constitution, as if they have a right to pick and choose what to obey, despite the one and only requirement for an Article V convention being satisfied. Indeed, there have been some 750 applications for a convention from all 50 states, more than the two-thirds requirement. A major reason Congress has gotten away with this illegal behavior is that nearly all organized political interests on the left and right have opposed a convention. Why? Because they like their current ability to corrupt Congress through lobbying and other forms of spending and fear true reforms of our political and government system through amendments proposed by a convention, which still must be ratified by three-quarters of the states. Both ratification and the exact words in Article V prevent any wholesale rewriting of the entire Constitution.

If Americans want to fix the recent, awful Supreme Court decision, then they should rally behind the effort of the nonpartisan Friends of the Article V Convention. They only advocate making Congress obey the Constitution and call for a convention, but not specific amendments.

All those campaigning for a new constitutional amendment to accomplish any type of reform to improve the US should recognize that voting in new members of Congress or a President has proven to be totally ineffective in achieving necessary reforms to make government work better. The two-party plutocracy is far too corrupted by business and other special interests. The Founders gave us the Article V convention option because they anticipated the failure of the federal government to honestly serve public interests. Now, more than ever, is the time to use what they gave us. Now is the time for Americans to stop being constitutional hypocrites, saying they love and honor the US Constitution but refusing to make Congress obey every part of it, especially Article V.

How about President Obama who used to teach constitutional law getting behind this, especially because he reacted to the recent Supreme Court decision this way: “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Wouldn’t it be logical for the president to demand that Congress obey the Constitution?

About Joel S. Hirschhorn

Formerly full professor Univ. of Wisconsin, Madison, and senior official Congressional Office of Technology Assessment and National Governors Association. Author of four nonfiction books and hundreds of articles.
  • The Obnoxious American


    Can you do anything but post snarky, half witted comments?

    Corporations aren’t human, they are made up of humans and thus have rights. Even Doc and Silas get that.

  • Dr Dreadful

    Obnox @ #49:

    Is your example actually an illustration of the nanny state, or of the marshmallow manufacturer covering its ass?

  • The Obnoxious American

    Is there a difference? Typically nanny staters at least here in the US are the same folks who are against tort reform and in bed with the trial lawyer lobby.

    But it speaks to something deeper than that. By allowing all manner of plantiff deserved or not to sue at their desire, we’ve created a culture of plausible denial and lack of accountability. I could cite example after example but i wont.

  • Silas Kain

    It’s not on government to protect your sensibilities or ensure you only ever get told the truth, it’s on you to know the deal and learn what the truth is. With freedom comes responsibility.

    Other issues which we both agree, OA. Next thing you know, you’ll actually agree that queers are OK after all.

  • FitzBoodle

    Corporations are not humans, so they make no decision and have no position on issues. Thus, any position stated by a corporation proceeds from an individual, who already has a free speech ticket. Thus, it is egregious to give another free speech ticket to the corporation.

  • Dr Dreadful

    If you mean an end to all political advertising, even from the candidates, then I am game (though this too is a restriction of free speech, but I’d be happy to have all of that time back that would have otherwise been spent sitting through ad after mind numbing ad).

    Broadcast political advertising, as such, is banned in Britain, although newspaper and billboard advertising is allowed. Partly, I think, this is because broadcasters are subject to government licensing and it is seen as a conflict of interest.

    Instead, there is a system in which the major parties are allotted a certain number of five or ten-minute ‘Party Political Broadcasts’ per year on primetime TV and radio – usually just before or after the main evening news – to say whatever they wish to say. (The number of broadcasts are increased during an election campaign.) The effect of this system is to keep the parties focused, so you get plenty of actual political content and little if any of the personal smears, misdirection and misinformation which are characteristic of American political ads.

    Which parties get TV time is decided, I believe, by a combination of their representation in Parliament, the vote share they got at previous elections, and opinion polls. Unfortunately, this means we have to put up with fringe parties like the BNP and the Liberals from time to time. But almost everyone agrees that it’s a fair system.

  • The Obnoxious American


    I never said queers weren’t ok. Go back and read my articles, I don’t have anything against gay people at all.

    I do have a problem with identity politics. I’m against a repeal of don’t ask don’t tell because I don’t think we should play gender politics with the very part of government whose role is to fight our wars and protect us. It’s not just gays, I like my soldiers focusing on the job at hand, not what hole to stick what thing into, straight or gay. Especially in the current context where Obama is doing so many other things to weaken national security, to throw this into the mix is just stupid and shows yet another area where our priorities are screwed.

    Gay Marriage, isn’t marriage a religious thing? Isn’t christianity inherently anti gay? So if the government says Gay Marriages are ok, then are churches now forced to marry gays or face charges of discrimination? Civil unions? Yes, just like Barack and Hillary.


    That sounds kind of crazy. Maybe draconian.

  • The Obnoxious American

    If we were going to change don’t ask dont tell I would support changing it to: “Don’t Ask, Don’t Tell, Don’t Care”

    Meaning, just keep your sexuality to yourself while you are fighting on behalf of this country. But I don’t agree with letting soldiers who are gay, get dismissed merely because they are exposed. That’s wrong. Unless we’re talking about a soldier who is making an issue out of their sexuality, openly displaying it and causing a ruckus as a result. I know that doesn’t quite sound right but there’s something about a military that is disciplined and focused, not on their wee wees.

  • Cindy

    51 – Nope.

  • Silas Kain

    There needs to be a comprehensive restructuring in corporate governance. What’s happened is CEOs and their teams have bought and paid for members of Congress. So what results is a high powered circle jerk populated with a handful from our society.

    I believe in stock holders’ rights. Those who own the corporations must have mechanisms in place whereby they have an actual role in corporate decision making. They are blindly allowing management to make all the decisions. Not unlike the white trash back water mountain people of the far right fringe. There has to be a redistribution of wealth. The problem is that by my saying it, people jump to conslusions and think I am being socialist. Quite the contrary. There is nothing wrong with a free market society in the capitalist paradigm provided that those who invest in it have some democratic rights. So instead of redistribution of wealth we should have a redistribution of accountability — beginning with each and every individual who has a place at the table. Am I making sense?

  • Silas Kain

    OA, I was being tongue in cheek. I know that you are an ardent supporter of basic civil rights and applaud the same. I’m against DADT because I don’t think it ultimately matters in the theater of war. Quite the contrary. I think that a gay soldier will hit their target more often than not — especially if the opposing soldier has a nice butt.

    Nevertheless, I digress. Barry Goldwater said it best: “Having spent 37 years of my life in the military as a reservist, and never having met a gay in all of that time, and never having even talked about it in all those years, I just thought, why the hell shouldn’t they serve? They’re American citizens. As long as they’re not doing things that are harmful to anyone else… So I came out for it.” He’s been a hero of mine since childhood.

  • jeannie danna

    Has anyone heard from Clavos today?

  • The Obnoxious American


    Haha I guess if you’re using redistribution of wealth in a capitalist context, as you seem to be then you can’t quite be called a socialist can you. What you are describing is capitalism.

    Next time someone says redistribute the wealth, perhaps the person should be asked to complete the sentence, to whom, from whom and in exchange for what?

  • Silas Kain

    To Whom – the stockholders

    From whom – the CEOs who work for the stockholders

    In exchange for – a robust infusion of new energy into the free market

    After that – global peace.

  • The Obnoxious American

    Can’t argue with that Silas. I’m assuming you didn’t vote Obama in 2008? :>

  • Silas Kain

    How I voted in 2008 doesn’t matter, OA. All that is water over the dam. I voted for Scott Brown in January and will vote for ANY candidate who opposes an incumbent in November regardless of issues. To me this election is less about ideology and more about shaking up the status quo.

    Borrowing from Nancy Reagan, I have a mantra entering the booth this Fall. If you’re an incumbent – I’ll Just Say NO!!

  • roger nowosielski

    Obviously, OA, all your twisted thinking derives from the fact that you love this country. So did I. But it’s wakeup time. You should realize that this love affair is over.

    So transfer your allegiance. Try to love people, your fellow man for a change, and see what difference it will make. Or if push comes to shove, reignite the old faith that Ruvy’s is talking about. But for crying out laud, forget the old farts like the founding fathers. They were obsolete even for their own times.

  • roger nowosielski

    Better yet, if you love this country, love for for what it can be, not for what it has become.

  • roger nowosielski

    “So instead of redistribution of wealth we should have a redistribution of accountability — beginning with each and every individual who has a place at the table. Am I making sense?”

    Now I see, Silas, why OA fell in love with you – the matter of gayness notwithstanding. You’re not reaching into his pockets.

  • Cindy

    This sentiment expressed toward Wall St. works equally well for corporate elites.

  • roger nowosielski

    Don’t jump, OA. I haven’t mistaken you for those fuckers. But it’s time to repent and atone for your sins. And your punishment will be . . .

    Well, I’ll forgive you, just sin no more.

  • Dr Dreadful


    That sounds kind of crazy. Maybe draconian.

    Perhaps it seems that way to you because you’re not accustomed to the way broadcasting is set up in the UK. The party political broadcast system has been in place since the early years of radio and TV, when the only broadcaster was the BBC – which not only doesn’t take paid commercials* but is also mandated by its charter to be politically impartial.

    When the commercial stations started in the late 50s, political impartiality remained a condition for getting a broadcasting licence, so the PPB system was simply extended to them. Parties usually make the same broadcast on both the BBC and ITV, though not necessarily at the same time.

    It’s a fair system, even if it does muzzle the pols a bit (does them good, in my opinion).

    And it’s not as if those broadcasts are the only way politicians have of getting their messages across on TV. As in the US, there are countless interviews (and come to think of it, what corporate CEO often has the opportunity to sell his company in an interview the way politicians can their parties?), news coverage of party rallies and conferences, and also a popular show called Question Time, in which a panel of political and other public figures (different ones every week) debate questions from a studio audience about issues of the day.

    * Funnily enough, the BBC got in trouble with the Fair Trade Commission for running a commercial a few years back… for its own TV listings magazine. They were told that they either had to let all the other listings magazines show commercials on the Beeb – or stop doing it. They chose the latter. :-)

  • zingzing

    oa–do you know what a 401k is? doesn’t seem to be what you think…

    “When we have warning signs on bags of marshmellows, we’ve got a bit too far in the direction of nanny statehood.”

    it’s a fucking bag of marshmallows. let it go.

    “Gay Marriage, isn’t marriage a religious thing? Isn’t christianity inherently anti gay? So if the government says Gay Marriages are ok, then are churches now forced to marry gays or face charges of discrimination? Civil unions? Yes, just like Barack and Hillary.”


    marriage isn’t just religious, it’s a state thing and there are rights connected to it. christianity doesn’t have to do shit. they can fuck off or they can take the money. marrying gay people is the opposite of discrimination at this point. barack and hillary aren’t married in any way.

    that was one fucked up paragraph.

  • zingzing

    doc: “It’s a fair system, even if it does muzzle the pols a bit (does them good, in my opinion).”

    damn right. obviously, our system of having bullshit paraded around is much, much better. i favour it. how do i turn off the sarcasm machinism?