Massachusetts Could Lead Way in Overturning Citizens United
Voters in Massachusetts could give an important boost to a movement seeking to amend the U.S. Constitution to restore some limits on corporations’ political spending.
Voters on Tuesday are being asked to create a special state commission charged with weighing potential constitutional amendments that would overturn the Citizens United decision, which helped open the door to allowing businesses, unions and nonprofits to spend unlimited amounts to influence elections.
The question is part of a wider multistate effort to undo the 2010 Supreme Court ruling.
American Promise, the national organization behind the effort to reverse Citizens United, said 19 states have already signaled their support for similar amendments, most through resolutions approved by legislatures. Voters in four states — Colorado and Montana in 2012 and California and Washington in 2016 — also approved questions aimed at nixing the court ruling.
The voters in those states essentially instructed their congressional delegations to support an amendment overturning Citizens United, without offer specific language. In Massachusetts, which doesn’t allow statewide advisory questions, the referendum would take the step of creating a citizens commission to research the issue and suggest possible amendments.
The goal is to guarantee everyone has an equal shot at getting the ear of lawmakers — something he said the current political system fails to do, said Ben Gubits, political director for American Promise.
“It’s been a long trend in our democracy working for the folks that make large campaign contributions — wealthy individuals, corporations and some unions — while the rest of the average citizens don’t have a voice,” he said.
The call to overturn Citizens United has bipartisan support, Gubits said. His group counts members of both parties on its advisory council, which includes former Wyoming U.S. Sen. Alan Simpson, a Republican, and former Massachusetts Gov. Michael Dukakis, the Democratic nominee for president in 1988, he said. Massachusetts Republican Gov. Charlie Baker and Democratic U.S. Sen. Elizabeth Warren have said they will vote for the question.
The group disputes that laws limiting political spending violate the First Amendment, Gubits said, arguing money doesn’t equal speech.
Not everyone agrees.
Paul Craney, spokesman for the conservative-leaning Massachusetts Fiscal Alliance, said the ballot question is wrong-headed.
“Is money speech?” he said. “Absolutely.”
But increasingly, Craney said, money isn’t the only way to amplify one’s voice.
“A lot of people out there have a big following on social media that can communicate with a lot of people, and it costs them nothing,” he said. “So more and more you’re starting to see that money is not the only way to have speech.”
The Citizens United ruling helped make it easier for corporations and unions to spend unlimited amounts of money trying to persuade voters to cast their ballots for or against a candidate. While the ruling did not lift the ban on companies and unions giving money directly to candidates for federal office, it let them spend money trying to influence voters as long as the money was not being spent in coordination with a campaign.
Many groups have ramped up their political spending without publicly disclosing the sources of their money by forming “dark money” groups classified as social welfare organizations by the IRS. They can advocate for or against a candidate, run phone banks and donate to so-called super PACs. The nonprofit Center for Responsive Politics has tallied about $133 million spent so far this election cycle with no disclosure of donors, compared with about $177 million spent in 2014′s midterms.
The question would instruct the newly formed commission to recommend potential constitutional amendments to establish that corporations do not have the same constitutional rights as human beings and that campaign contributions and expenditures may be regulated.
Any resident of Massachusetts who is a U.S. resident could apply to serve on the 15-member, unpaid commission. The governor, secretary of the commonwealth, attorney general, House speaker and Senate president would each appoint three members.
Letting politicians appoint members is a problem, Craney said.
“Whenever you empower elected officials or politicians to regulate the public speech, the First Amendment is under attack,” he said.
The main task of the commission would be to release a report that would take a look at the impact of political spending in Massachusetts and any limitations on the state’s ability to regulate corporations and other entities in light of the Citizens United ruling.
The question also gives the commission the task of making recommendations for possible constitutional amendments and suggesting ways to advance those proposed amendments.
The proposed law would take effect Jan. 1, 2019. The commission’s first report would be due by the end of December and would be delivered to Congress and the president.
The group is hoping new amendment could be added to the Constitution by 2026, Gubits said — a process that would require its approval by two-thirds of the U.S. House and Senate and ratification by three-fourths of the states, 38 in all.
“We passed 12 amendments in the 20th century alone,” he said. “This isn’t something that we used to do just back when people wore powdered wigs.”
There have been just 27 amendments added to the Constitution — including the first 10, the Bill of Rights, ratified in 1791.