The California Legislature has passed a resolution that seeks a convention to curb the influence of money in politics by amending the constitution.
LOS ANGELES — It’s been 227 years since the United States held a constitutional convention in response to a crisis over how to govern the country following independence from Great Britain. The convention of 1787, supported by such luminaries as James Madison and Alexander Hamilton, resulted in the creation of the U.S. Constitution.
California Assemblyman Mike Gatto may not go down in history as another Madison or Hamilton. But he has taken a leaf out of their book in an effort to address what he believes is an ongoing crisis over governing the country since a U.S. Supreme Court decision in 2010.
In the case known as Citizens United v. Federal Election Commission, the court struck down federal limits on corporate contributions to political campaigns, departing from precedent in finding that corporations — like persons — have a First Amendment right to engage in political speech.
Last month, the California Legislature passed a resolution authored by Gatto that seeks a convention to overturn the Citizens United decision and curb the influence of money in politics by amending the Constitution.
The amendment would “limit corporate personhood for purposes of campaign finance and political speech and would further declare that money does not constitute speech and may be legislatively limited,” Assembly Joint Resolution 1 states.
The vote made California the second state in the nation to take such a step, following Vermont. If two-thirds of the states adopt similar resolutions, Congress would be required under Article V of the Constitution to call a convention.
“Voters are clearly fed up, and polling shows this, with the notion that money is speech and big money can drown out the speech of average Americans,” state Sen. Mark DeSaulnier told his colleagues in the Legislature.
The prospects of a constitutional convention actually happening appear slim — of the 27 constitutional amendments ratified by the states to date, all resulted from congressional action rather than an Article V convention. Three-quarters of the states must affirm a proposed amendment.
Some political commentators have dismissed Gatto’s resolution as a purely symbolic gesture, and one election law expert has suggested that a convention could cause more problems than it solves.
“Changing the Constitution is no small feat, and it is a terrible idea to change it with broad language that could squelch healthy political debate, limit press freedoms, and muzzle nonprofit ideological corporations,” Professor Richard Hasen of the University of California, Irvine School of Law wrote in a law review article.
But Gatto insists his idea is an appropriate, and viable, response to Citizens United.
“You’d be surprised how quickly consensus can be reached when people realize there is a crisis,” he told MintPress News in an interview. “There’s a lot of people who think there’s a crisis with campaign finance.”
Skepticism toward Congress
The Citizens United ruling, which held that the FEC improperly barred the screening of a political documentary about Hillary Clinton before the Democratic primaries in January 2008, caused bitter divisions within the Supreme Court.
The majority opinion, Justice John Paul Stevens wrote in a dissent, “threatens to undermine the integrity of elected institutions across the Nation” and “rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty.”
According to campaign finance watchdogs, the decision has given birth to “super PACs,” which have poured unlimited corporate money into federal elections. In California, more than $372 million was spent both promoting and attacking the 11 ballot initiatives on the 2012 general election ballot, with the top 20 donors providing 69 percent of the funding.
One Democrat in Washington, Sen. Tom Udall of New Mexico, launched an attack on Citizens United in June 2013, introducing a resolution that would amend the Constitution so Congress has the power to regulate and limit election spending. Advocacy groups such as Public Citizen support Senate Joint Resolution 19, but it has yet to reach a committee vote.
Gatto, a Democrat who represents Burbank, Glendale, Silver Lake and other communities in the Los Angeles area, hasn’t been waiting around for Congress to act.
“I share the same skepticism that members of the public have [toward] Congress,” he said. “It’s racked with gridlock and the lower house is controlled by a party that does not have campaign finance reform as part of its platform. It’s very unlikely that [a reform bill] will ever actually pass.”
After the Supreme Court decided Citizens United, Gatto recalls, he began “looking for something the state could do that was not merely symbolic … that would actually have some teeth.” While reading the Constitution one day, he read Article V and realized that a constitutional convention “could actually happen under the right circumstances. States have the power to demand that Congress call a convention.”
An initial resolution that Gatto introduced with two colleagues in March 2012 died in the Assembly Judiciary Committee. A.J.R. 1 was introduced in December 2012.
For its supporters, a Senate Judiciary Committee analysis noted, the resolution “is not a partisan issue but, rather, represents to them the only viable option to restore fairness and any semblance of trust in the American form of representative government. For some, this bill represents the single most important measure before their state representatives.”
Meanwhile, on the other side of the country, Vermont lawmakers were similarly inspired, saying that the Supreme Court’s removal of restrictions on independent political spending had “resulted in the corrupting influence of powerful economic forces, which have supplanted the will of the people.” A resolution calling for a constitutional convention that was introduced in 2013 was passed in May.
“We’re sending a strong message to our Congress and to other states that we would like to see changes to overturn the Citizens United decision,” state Sen. Virginia Lyons, lead sponsor of the resolution, told the Burlington Free Press. “It’s upsetting the balance of our electoral process. It’s our generation’s greatest responsibility to restore free elections.”
In California, the legislative wheels have turned more slowly. The state Assembly voted 51-20 in favor of Gatto’s resolution in January, and the Senate expressed its approval on June 23 with a 23-11 vote.
With California — which has a population 60 times as large as that of Vermont — on board, Gatto is hoping that “we have spawned a national movement” to push for a constitutional convention. According to Wolf PAC, a national political action committee that has been organizing efforts in support of a convention, similar resolutions are pending in 10 states, including Illinois, North Carolina, Pennsylvania and Minnesota.
Other states have been “waiting to see what California did,” Gatto told MintPress, adding that he expects five or six more states to introduce resolutions when legislatures reconvene in December.
Of course, there are skeptics who doubt a constitutional convention will win the support of 34 states — let alone produce an amendment that will be ratified by 38 states. “[I]t is unlikely any supermajority in this country will agree on anything in the near future,” the California legislative committee analysis predicted.
Professor Hasen of UCI and others have voiced concern about the possibility of a “runaway convention” that would move beyond its original mandate to consider policy questions and potential amendments not contemplated in the resolutions of state legislatures.
“You aren’t focused and I don’t see any limits,” one California assemblyman said at a hearing on Gatto’s original resolution.
But A.J.R. 1 includes language that it is “for a limited constitutional convention and does not grant Congress the authority to call a constitutional convention for any purpose other than for the sole purpose” of campaign finance reform.
“If Congress says it wants to call a constitutional convention on another topic, it doesn’t have the power to do that,” Gatto noted.
He also said that even though there hasn’t been a convention since 1787, that doesn’t mean resolutions like his haven’t been an effective way of pressuring Congress to pass a constitutional amendment.
Both the 21st Amendment, which repealed Prohibition, and the 17th Amendment, which required that U.S. senators be directly elected by popular vote rather than by state legislatures, followed resolution campaigns by states, Gatto explained.
“I would take either” a convention or a congressional amendment, he added.