The Word in the House 5/15/2014 - Constitutional Matters

The debates on the floor during the last two weeks of the session take on a new sense of urgency and can go on for hours on a single bill.  It is an honored tradition to continue the debate until everyone who has a question about a bill or has something to say about it has done so.  That scenario unfolded late one evening, not on a bill, but on a joint resolution of the House and Senate.

You may recall that in 2010, the U.S. Supreme Court, on a 5-4 vote, struck down the McCain-Feingold campaign financing bill in a case that became known as the Citizens United decision.  Citizens United was/is a political action committee (PAC) that sued to remove the limits a PAC could spend in elections.  The court ruled that not only was money equivalent to speech, but that putting a limit on such “speech” violated the First Amendment of the U.S. Constitution.  The Supreme Court extended that concept in a ruling on April 2nd of this year in the McCutcheon vs. Federal Election Commission, which effectively equated corporations to people and struck down any limits on corporate campaign contributions.  (It was like a terrible April Fool’s joke on democracy!) 

If we were to try and reverse these decisions – and I believe we should – we would have two options.  First, the U.S. Congress, by 2/3 vote of each of the House and the Senate, could pass a Constitutional Amendment.  Alternatively, 2/3 of the state legislatures could call for a Constitutional Convention for the purpose of proposing amendments to the Constitution.  Any amendment would then require ratification by ¾ of the states, i.e. 38 states, to take effect.  Both options are established in Article V of the U.S. Constitution.

Several amendments have been proposed in the U.S. Senate since Citizens United to overturn the decision.  However, since the present partisan dysfunction of Congress makes it unlikely that any amendment would get traction, Dr. Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School, has been advocating the second approach.  Dr. Lessig has visited Vermont several times, including giving a seminar at UVM two years ago.  Most recently, he visited the statehouse last month to support JRS27, a joint resolution sponsored by Senator Ginny Lyons and others, requesting Congress to call a convention for proposing amendments to the U.S. Constitution “that would limit the corrupting influence of money in our electoral process, including … by overturning the Citizens United decision.”

After the resolution passed the Senate on a vote of 25-2, the House took it up on Thursday, May 1st, in the evening after a dinner recess.  During a two hour debate that centered on the wisdom of convening a Constitutional Convention, no one disagreed that the infusion of unlimited sums of money into election campaigns is a threat to our democracy.  If anyone did disagree, they didn’t say it out loud.  The critics of the resolution held that a Constitutional Convention would not be limited to a single issue and could turn into a runaway convention to displace the entire Constitution.  Proponents argued that such a result would not be possible, because any proposal of amendment coming out of the convention would have to be ratified by ¾ of the states.  Many amendments have been proposed under Article V which have never succeeded in gaining the support of enough states to convene a Constitutional Convention.  Since the threshold of passage is so high, one may ask if the resolution merely makes a statement of our discontent with the Supreme Court’s decision.  While it is such a statement, our hope is that either other states over time will pass similar resolutions, or that it will generate enough public support nationwide to encourage Congress to pass an amendment, and Vermont is willing to take the lead in this effort.  By 9:30 PM debate had not yet ended and the Speaker asked for adjournment until the following day.  After the resolution was again taken up and debated briefly, it passed on a vote of 95-43, making Vermont the first state to call for a Constitutional Convention for this purpose.