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'Our situation is not inevitable,' write Bonifaz and Cressman, 'but rather the predictable results of Supreme Court rulings going back forty years that have wrongly equated unlimited campaign spending with the freedom to speak our conscience as protected under the First Amendment.' (Photo: via Occupy.com)

The Threat of Big Money in Politics and the Call for a 28th Amendment

John BonifazDerek Cressman

While Americans agree that there is too much money coming from too few people in our political campaigns today, a debate over how to address that problem raises an even larger question about whether or not we still have a Constitution that works to provide a government of, by, and for the people. In particular, the question is whether we still have the capacity to amend our Constitution as a way to check and balance a runaway Supreme Court.

In his farewell address where he notably warned Americans against the dangers of hyper-partisanship, President George Washington also urged his fellow citizens to embrace the checks and balances of the three branches of government.  He urged us to accept the authority of the Constitution, precisely because when we found the distribution of powers to be wrong, we could change it through amending the Constitution.

Americans now find ourselves in a situation where true power no longer solely resides within our three branches of government, but within a narrow cabal of political campaign donors that decides who can run for office as a viable candidate, who will win elections, and what issues will be put forth for debate. Any individual donor doesn’t always see his or her favorite candidate win—sometimes they lose to other big money candidates. But with the candidate who raises the most money winning nine out of ten congressional campaigns, big money donors have collectively prevented candidates lacking access to wealth from governing the country.

Our situation is not inevitable, but rather the predictable results of Supreme Court rulings going back forty years that have wrongly equated unlimited campaign spending with the freedom to speak our conscience as protected under the First Amendment. George Washington would tell us that the response to overreaching Supreme Court rulings which threaten our Republic—such as the Court’s 2010 ruling in Citizens United v. FEC—would be to amend our Constitution to correct them.

Yet when serious legislators, reform organizations, and millions of Americans across the country propose a constitutional amendment to establish that campaign spending is not the same as free speech, the naysayers jump in to say it cannot be done. We are told it is simply too hard to amend our Constitution and that it is more prudent to simply wait for a new president to appoint new members to the Supreme Court.

Yet, by taking a straightforward amendment to the Constitution off the table and relying instead on the indirect process of presidential appointments to a future court, we are in essence abandoning the very premise of our Constitution that we are willing, and able, to govern ourselves.

The Constitution is not, and should not, be easy to amend.  We would expect that issues where the country is divided would not command a sufficient national consensus to pass an amendment. Yet, both polls and results from state and local ballot measures consistently show that 75% to 85% of Americans disagree with the Citizens United ruling and want it reversed.  Is our distribution of powers between our three branches of government so out of whack that a supermajority around one of the few issues that unites most Democrats, Republicans, and independents can no longer amend our constitution as the framers promised?

We’ve amended our Constitution before in ways that challenged entrenched interests through women’s suffrage and bringing direct election of U.S. Senators.  In seven of our 27 amendments enacted to date, we have overturned egregious Supreme Court rulings. It was indeed hard, but not too hard for earlier generations.

It’s perfectly reasonable for presidential candidates to campaign in part on whom they will nominate to the Supreme Court.  But, for the rest of us who are not running for president, we should decide if We, the People, still want to govern the country for ourselves or if we’re willing to let nine appointed members of the Supreme Court do it for us.


Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.

John Bonifaz

John Bonifaz is co-founder and director of Free Speech For People (www.freespeechforpeople.org), a national nonpartisan campaign working to overturn the Supreme Court’s Citizens United ruling and the corporate rights doctrine.

Derek Cressman

Derek Cressman

Derek Cressman is author of "When Money Talks -- The High Price of "Free" Speech and the Selling of Democracy," published in January, 2016 by Barrett-Koehler. In June 2014, Derek ran for California Secretary of State after spending 19 years working to protect voting rights and get corporate money out of politics. Prior to announcing his campaign, Derek served as Common Cause's Vice President of State Operations.

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