Senate Majority Leader Harry Reid made a splash last week by endorsing an amendment to the United States Constitution that would overturn the Roberts Court Citizens United decision. We will let him explain the reasoning behind such an effort and simply ask whether it is a realistic goal.
Turning a proposed amendment into a capital-A Amendment is not easy, and is not supposed to be. America’s most recent experiences with amendment drives followed two paths through the states: the quiet success of Amendment XXVII, and the disappointing failure of the Equal Rights Amendment. We shall briefly look at both.
The success of Amendment XXVII was almost entirely due to one person, Gregory Watson, who lobbied state legislatures to adopt a measure aimed at curbing Congressional pay raises. His efforts only succeeded because he could exploit a quirk in Constitutional law that left no time limit for ratification, but the amendment was certainly popular — which is key to success in ratifying any amendment.
“A constitutional amendment is a statement of national political consensus that is transcendent of party division,” said Jamie Raskin, a constitutional law professor at American University and Democratic member of the Maryland Senate. “It is a statement that society as a whole is taking a permanent position on an issue that transcends the normal back and forth of party politics. We’re just lacking that sort of transcendental political consensus.”
The Equal Rights Amendment could not make that leap. Although organizing began with popular support and quickly gained momentum, advocates soon found themselves opposed by a countervailing force named Phyllis Schlafly. She was leading a new wave of reactionary conservative politics that would wash Ronald Reagan ashore at the White House in 1980, and she had a million ridiculous reasons to oppose the amendment.
Protective laws like sexual assault and alimony would be swept away. The tendency for the mother to receive child custody in a divorce case would be eliminated. The all-male military draft would become immediately unconstitutional. Those opposed to the ERA even suggested that single-sex restrooms would be banished by future courts.
Stop-ERA advocates baked apple pies for the Illinois legislature while they debated the amendment. They hung “Don’t draft me” signs on baby girls. The strategy worked. After 1973, the number of ratifying states slowed to a trickle. By 1982, the year of expiration, only 35 states had voted in favor of the ERA — three states shy of the necessary total.
Feminist groups maintained that a serious blow was struck toward the idea of gender equity in the United States. They also saw women divided against other women. Despite early gains by the feminist movement, the rise in social conservatism led Americans of both genders to draw limits on a constitutionally mandated equality between the sexes.
History shows that one person actually can change the Constitution, but just one person can also stop it from being changed. As with health care reform, almost all of this concern-trolling was hysterical propaganda, much of which has become socially passe. For example, American military women are already serving in combat roles, obviating one of Schlafly’s biggest talking points, but it does not seem to matter. The ERA has been reintroduced in Congress every year since 1985 without ever receiving the two-thirds majority of both houses needed for ratification. Conservative culture warriors are still vigilant against it. There is still no path forward for the ERA in today’s America.
It is important to remember this history because a ratification effort to overturn Citizens United will face public pressure from those who stand to lose the most. The same wealthy donors who look forward to buying practically unlimited political influence will undoubtedly find their Phyllis Schlafly to influence public opinion and state legislatures against an amendment. The Koch brothers, who already enjoy immense influence in state governments around the country, will undoubtedly pull out all the stops to convince average people and their elected officials that free speech itself is under attack. Nor can we expect that any Congress divided like the current one will ever be able to reach a two-thirds consensus on such an amendment.
Is a fix to Citizens United necessary? Absolutely, if we want to avoid total oligarchy. But it will not be accomplished with ease, so as necessary as an amendment might be, there is little chance that it will ever happen in today’s political climate. In fact, ‘climate’ is a good analogue for the issue, because as long as one party remains entrenched in denial it does not matter how scientific, factual, or sensible climate change legislation or an amendment to reverse a Supreme Court decision happens to be. Realistically, the most likely outcome of such efforts will be gridlock and failure, because all the Republicans have to do is keep the ‘debate’ open.