Constitutional amendment required to undo Citizens United, Senate panel told
No Republicans on the Senate Judiciary subcommittee attended the hearing, which heard testimony from lawmakers opposed to the Supreme Court's Citizens United ruling and constitutional scholars.
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Mr. Shapiro was the only individual at the hearing who sought to defend the Citizens United decision. He called it one of the most misunderstood high court decisions ever.
“It doesn’t stand for half of what many people say it does,” he said.
“Take for example President Obama’s famous statement that the decision ‘reversed a century of law that I believe will open the floodgates of special interests – including foreign corporations – to spend without limit in our elections,’ ” Shapiro said, quoting the president. “In that sentence, the former constitutional law professor stated four errors of constitutional law.”
Shapiro said the decision did not reverse a century of law. Instead, it invalidated a 1990 decision that allowed restrictions on political speech to level the electoral playing field rather than the accepted rationale of preventing corruption, he said.
Citizens United had nothing to do with foreign influence in elections, which remains illegal, he said. And there is no indication that corporate spending has greatly increased this election cycle, Shapiro said.
Instead, the spending increases are coming from wealthy individuals.
Shapiro said the best response to the Citizens United decision would be to require full disclosure of donors to super PACs and to lift current restrictions on contributions to federal candidates.
Professor Lessig disagreed. He said such proposals fail to recognize the pernicious nature of a broader form of corruption of the election process.
Lessig said the problem is the concentration of influence in a handful of wealthy donors capable of wielding large amounts of money quickly.
“It is as if America runs two elections each election cycle – one a money election, and one a voting election,” he said. “To succeed in the latter, you must succeed in the former first.”
The professor said that in post-Citizens United campaigns, the problem is not the amount of money, it is the source of the money. Candidates will understand the importance of such “independent” donors, and that understanding exerts a kind of corrupting influence, he said.
Lessig said mere disclosure laws alone would not be a sufficient response to such corruption. The answer, he said, requires a system of publicly financed elections.
“Only a system of citizen funded elections – where dependence upon ‘the funders’ is the same as dependence upon ‘the People’ – could reform that corruption,” Lessig told the senators.
Joining Lessig and Shapiro was former Republican presidential candidate Charles “Buddy” Roemer, the former governor of Louisiana, who is a firm advocate of limits on campaign contributions.
Another witness at the hearing, Vermont Sen. Bernard Sanders, an independent, said the democratic foundations of the nation are currently enduring their most severe attack in history on both economic and political fronts.
“We are well on our way to see our country move to an oligarchy, where power rests in the hands of a few families,” he said.
Senator Sanders said inequality in the US is worse than it has been at any time since the 1920s. He noted that 23 billionaire families have contributed at lease $250,000 each so far in this year’s campaigns.
He added that the wealthiest 400 individuals own more wealth than the bottom 150 million Americans – roughly half the country.
“What the Supreme Court did in Citizens United is to say to these same billionaires and the corporations they control: ‘You own and control the economy, you own Wall Street, you own the coal companies, you own the oil companies. Now, for a very small percentage of your wealth, we’re going to give you the opportunity to own the United States government,' ” Sanders said.
“This is the essence of what Citizens United is all about – and that’s why it must be overturned,” he said.
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