Editor’s note: This op-ed is by James Marc Leas, a patent lawyer from South Burlington who served as a staff physicist for the Union of Concerned Scientists in the aftermath of the accident at Three Mile Island.
Although the Constitution already includes a remedy, certain elected officials and public interest organizations are advocating for a constitutional amendment to overturn recent Supreme Court decisions that have corrupted elections, public officials and government. Critics of the constitutional amendment approach point out that an amendment would not solve the problem, legitimizes the Supreme Court seizure of power over elections, would keep the Supreme Court in charge, and diverts from a solution already in the Constitution that effectively solves the problem with far less effort.
The simpler alternative that is already available in the Constitution deserves attention.
Supreme Court decisions legalizing private interest financing of election campaigns have enabled a vast increase in private interest control over our federal government. The 1% contribute hundreds of millions of dollars in election campaigns to empower themselves and disempower the 99%. To keep that money flowing to themselves elected officials waste enormous sums of taxpayers’ money on government contracts, subsidies, bailouts, wars and tax cuts for the rich. The 1% thus receive enormous returns on their political investments. By contrast, the government uses the resulting deficits to justify cuts in needed spending on education, health care, environment, safety and infrastructure that would benefit the 99% who do not buy elections and influence.
Here is why a constitutional amendment is not needed. The revolutionary leaders who wrote the Constitution, fresh from overthrowing the tyranny of King George, included sufficient checks and balances on all three branches of government — including the courts — to prevent the kind of tyranny we now suffer.
Under our existing Constitution, Congress already has the power to stop the Court from making any more of the decisions that have allowed the 1% to buy elections. Then Congress can pass legislation reversing the unconstitutional decisions the court has made to corrupt elections.
As to the Supreme Court, here is the provision the founding fathers included:
The Supreme Court shall have appellate Jurisdiction, both as to Law and Fact with such Exceptions, and under such Regulations as the Congress shall make (US Constitution, Article III, Section 2).
Hence, under the Constitution, Congress has the power to remove judicial jurisdiction over financing election campaigns. It can curtail the court and the tyranny of private money in elections facilitated by the 5-4 majority of Supreme Court judges whose goal is to empower the 1% at the expense of the rest of us..
Congress and state legislatures would then be free to pass laws removing private money from election campaigns.
Separately, Congress also establishes and controls all “inferior courts” (Article III, Section 1).
What is needed is a mass public campaign to force Congress to use its existing power.
It is not just the Constitution. As early as 1803, in a case called Marbury v. Madison, the case in which the Supreme Court established judicial review, the court also recognized that it must not decide questions that are “in their nature political.” Regulating elections and their funding to prevent corruption is a quintessential political question. For 173 years the courts followed this mandate and declined jurisdiction over such political questions.
That changed in 1976 when the court decided that corrupting money in politics is constitutionally protected speech. The court, not Congress, established as law that putting money in the pocket of a politician has the same protected status as speech by a citizen. Thus, the court allowed the 1% with money to drown out the speech of ordinary voters. In that decision, and in 5-4 decisions since then, the Supreme Court overturned the long-established precedent of keeping out of political questions so it could unleash special interest money in politics.
The decision addressed an increasing problem for the 1%. Faced with an aroused public, Congress had earlier passed vast amounts of progressive legislation, including the Clean Air Act, product safety and food safety laws, the EPA, the Clean Water Act, the Occupational Safety and Health Act, consumer protection laws, and laws regulating campaign contributions and spending. One of the ways the 1% fought back to empower themselves and disempower the 99% was to have the court make elections a commodity that they could finance and control.
By enabling the upper 1% to buy elections, the court put an end to rule of, by and for the people at the federal level and within most states. The court not only put a stop to progressive legislation, they turned the government into an instrument to increase the wealth and power of the 1%. To its credit, Vermont has successfully resisted the power of money in several recent elections. But recent Supreme Court decisions allow an overwhelming flood of private interest money, even putting democracy in Vermont at risk.
Now is the time for we the people, our towns and our states to demand that Congress use its existing power to re-establish the bar on court jurisdiction over financing election campaigns, establish public funding and remove private interest money from elections.
Tragically, the recently initiated drive for a constitutional amendment dangerously leads the public away from demanding that Congress act now using its existing power. It implements delay. It substitutes an incredibly difficult approach. It legitimizes the court’s illegitimate seizure of jurisdiction over a fundamental political question. It also demeans the American revolutionaries who purposely and intentionally wrote this important check and balance into our Constitution for just such a circumstance as the one we face now. And asserting that the only solution is a Constitutional amendment diverts, weakens, confuses and demobilizes people.
Even if a heroic public managed to mobilize in great enough numbers to force passage of a constitutional amendment, the amendment would not actually solve the problem if jurisdiction over election financing is left in the hands of this court. The majority on this court, having already violated their Constitutional mandate, would find other ways to use that continuing jurisdiction to make bogus decisions that maintain and expand the power of the 1%.
What is needed is for Congress to remove jurisdiction over financing election campaigns from the jurisdiction of the court. So the court is entirely out of the picture on this subject as the Constitution and Supreme Court precedent required. The revolutionaries who wrote the Constitution provided Congress with the constitutional power to do just that. Misleading the public away from that heritage and that power will only legitimize and entrench the status quo.
If the text of the Constitution, as written by the revolutionary leaders, and the position of the court for 173 years regarding political questions, is insufficient to persuade the reader of this article, consider the practicalities:
* A constitutional amendment requires a two-thirds vote in each house plus ratification by three-quarters of the states within seven years, an incredibly high bar.
* A law requires only an ordinary majority in each house to deny court jurisdiction over funding elections and to pass legislation removing private interest money from election campaigns.
* Certainly, achieving an ordinary majority will be a difficult task. A mass movement, such as initiated by Occupy Wall Street but far larger, is needed to demand power for the 99%, equality, and an end to rule by the 1%. As difficult as demanding and achieving ordinary legislation is with a Congress already corrupted by money in elections, achieving a constitutional amendment will be inestimably harder.
The possibility of building the required movement is enhanced if the public understands that Congress already has the power to accomplish the goal with an ordinary majority vote. And that no almost insurmountable hurdle, like 2/3 of each house and 3/4 of the states within seven years blocks the way.
Building the necessary mass campaign can start right here in Vermont using a democratic tradition handed down by our revolutionary forebears who inspired the Constitution. And whose brilliant checks and balances we can demand be used now. Below is a model town meeting resolution to accomplish just that.
James Marc Leas is a patent attorney in Vermont. He can be reached at jolly39@gmail.com
PETITION
PRIVATE MONEY OUT OF POLITICS NOW
We, the undersigned registered voters of the town of ____________________Vermont, petition the selectboard to add the following resolution to the warning for town meeting, March 6, 2012.
“Recognizing that the US Constitution provides Congress with the power to limit and regulate the jurisdiction of the federal courts, shall the voters of our town request that the Vermont legislature call on Congress to use this constitutional power to remove Court jurisdiction over financing election campaigns so Congress can freely pass legislation to remove private interest money from elections, establish public funding, and prevent wealthy private interests–the top 1%–from controlling our government, corrupting politicians and our political system, and preventing government of, by, and for the people.”
Background:
* Since 1976, Supreme Court decisions have overturned laws restricting private interest spending on election campaigns enabling the 1% to take more and more control over our federal government.
* Private interests contribute money in election campaigns to empower and enrich themselves and to dis-empower the 99%. Federal officials wasted enormous sums of taxpayer’s money on government contracts, subsidies, bailouts, wars, and tax cuts for the rich that give the 1% a huge return on their campaign contribution investment while the government uses resulting deficits to justify cuts in needed spending on education, health care, environment, safety, and infrastructure.
* The U.S. Constitution provides Congress with all the power it needs to prevent the US Supreme Court from enabling the 1% to buy elections. No constitutional amendment is needed. The U.S. Constitution states: “The Supreme Court shall have appellate Jurisdiction, both as to Law and Fact with such Exceptions, and under such Regulations as the Congress shall make” (Article III, Section 2). Separately, Congress also establishes and controls all “inferior courts” (Article III, Section 1).
* In addition, as early as 1803, and for the next 173 years, the Supreme Court declined jurisdiction over what it called “political questions.” Regulating funding for elections is a quintessential “political question.” But recent 5-4 Supreme Court decisions overturned this long established precedent because the Court majority wanted to empower the 1%.
* Congress thus has both constitutional authority and Supreme Court precedent to reestablish the bar on Court jurisdiction and remove private interest money from elections. It should use that power.
