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Since 2008 – Progress Through Politics

Bypass Congress to Overturn Citizens United

When I saw that Oregon became the latest state to call on Congress to pass a constitutional amendment to overturn Citizens United it caused me to begin thinking.  I know that in most civics classes we are taught how the Constitution is amended:  A proposed amendment must be passed by a two-thirds majority in each house and then ratified by three-quarters of state legislatures.  It seems straightforward and simple enough.  The truth, however, is that it is not.

There are two ways to amend the United States Constitution.  One is through the process mentioned above.  In fact, all 27 amendments to the Constitution have been proposed and ratified in this manor.  That said, there is another method, one which would allow proponents of a constitutional amendment to overturn Citizens United to bypass a congress highly unlikely to pass such an amendment.  Follow below the fold.

Article V establishes the process for amending the Constitution.  It states:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments (emphasis my own), which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

Oregon became the 16th state to urge Congress to act.  Had each of these states, instead of calling upon Congress to act, called for a constitutional convention, we would now be nearly halfway there.  That would apply much more effective pressure upon the Congress to act.  The threat of a constitutional convention, where it would not be clear whether the power of the convention would be limited to just that particular issue, could well spur Congress to act.

Such a campaign would not be easy.  After all, there has never been a constitutional convention subsequent to the 1787 Constitutional Convention, but the mere threat would exert significant pressure in its own right.  So, yes, we should keep the pressure on Congress, but we should also explore other constitutionally available avenues to achieve this objective.  Remember, 16 states have already made clear to Congress they want Citizens United overturned.  Get those 16 states, and 16 more, to call for a constitutional convention and I suspect even many Republicans in Congress would vote for such an amendment to head the convention off.


  1. PadreJM

    One can’t be sure what mischief delegates might make after dealing with the issue for which the convention is called, and which might be quite difficult to repair.

    Also, I’m not so sure it’s any easier to get 2/3 of the legislature to vote for such a call than it is to get an amendment passed the more (pardon the expression) conventional way.  I mean look how long it’s been since we succeeded in getting the Equal Rights Amendment passed by 2/3 in both houses, only to have it continue to languish decades later without having achieved ratification by the requisite number of states.

    I think I’m probably as anxious as you to get Citizens United overturned, and I hate playing the role of the concern troll, but I really think applying pressure on Congress is the logical, safest, and most likely to be effective next step.

  2. State legislatures weighing in and pre-voting, if you will, on a constitutional amendment they want to see is worthy.

    But there are more egregious attacks on “fair and honest elections” which have to take precedence. Voter ID laws which threaten to disenfranchise huge swaths of Democratic leaning voters, changes in voting times and places that make it nearly impossible for working people to vote, local governments intentionally making certain voting locations run less efficiently.

    We need a national standard for elections.

    When the overturning of Citizens United amendment is written, I would also like to see it include this from a Constitutional Amendment proposed by Rep. Mark Pocan (D-WI) and Rep. Keith Ellison (D-MN):

    “Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.”

    While it will not fix everything, it establishes in the constitution an inherent right to vote. Not just if you aren’t a felon or you can afford a photo ID or you can get to your city hall to early vote or you can afford to stand in line for 10 hours. A right to cast your vote.

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