Do We Need a 28th Amendment?

The Supreme Court held last week that corporations are akin to people under the First Amendment and are thus equally guaranteed the right to spend money on political advertisements.  As many commentators have recognized, this will undoubtedly transform the way in which the democratic process operates by giving political candidates access to vast corporate treasuries and thereby giving corporations a near puppeteer’s control over American democracy.

Whether this decision is in line with the Constitution is debatable.  On the one hand, the text of the First Amendment is clear that “Congress shall make no law abridging the freedom of speech.”  If political expenditures constitute speech then there’s nothing in the text that differentiates between people and corporations.   On the other hand, it’s not cut and dry that such expenditures constitute speech, although the Supreme Court has long said that they do.   When I think of what the “freedom of speech” protects, I see a protester on a soapbox criticizing the government, a “lone pamphleteer” distributing a controversial essay, and, yes, even pictures of Barrack Obama in Joker makeup.  These are the quintessential examples of free speech.   The point of the First Amendment was, in my view, to limit the government’s ability to act as a form of thought police.

Whatever your take on what the Constitution actually protects, it is certainly an imperfect document.  I’ve written many times on this blog that the Constitution doesn’t protect a right to same-sex marriage.  But I’ve never said that this is a good thing.  When the Constitution doesn’t do the job, the only constitutional remedy is a constitutional amendment.

In response to Citizens United, Lawrence Lessig has proposed just that.  From Change Congress:

Such an amendment must secure not one side in a political debate against the
other. It must instead give Congress the power to support its own elections in a
manner that secures its own independence. Members in Congress must be, and
must seem to Americans to be, free of any dependency upon lobbyists, or
fundraisers, and instead be dependent simply “upon the People.” We need an
amendment that gives Congress the power to secure this independence.

I encourage anyone to read the full essay here. It’s stirring, moving and, most importantly, convincing.  There really is no good reason why Americans should settle for a political system that incentivizes corruption and disincentivizes bonafide leadership.