Putting The Saving American Democracy Amendment In Perspective: A Look At Ratification And The ERA

In Citizens United, the Supreme Court of the United States held that political spending by incorporated entities is protected speech under the First Amendment. The Court held that the government may not limit such expenditures, so long as money is not given directly to candidates. Thus, a corporation may spend unlimited amounts of money to “indirectly” support its candidate of choice.

The Supreme Court's decision created a seismic shift in the American political landscape. We've witnessed wealthy donors single-handedly propping up the flailing campaigns of their candidates of choice, and bombarding the airwaves with attack ads. Super PACs have proliferated. In the last two years, these groups have raised almost $200 million. Demos reported that “[m]ore than half of itemized Super PAC money came from just 37 people giving at least $500,000.” Furthermore, a substantial amount of Super PAC money is untraceable.  

Citizens United has strengthened the worst elements of American politics. This decision threatens to hasten the unraveling of our democracy by further marginalizing the average voter while expanding corporate dominance in our elections. It all but guarantees that a handful of individuals will have more power than ever to decide who is elected to office. 

Senator Bernie Sanders (D-VT) has issued one of the strongest responses to Citizens United. He introduced a constitutional amendment to overturn the Court's decision. This is, after all, the only option opponents to Citizens have, aside from waiting for a new Court to overturn the decision. Sanders sums up his amendment as follows:

• Corporations are not persons with constitutional rights equal to real people.
• Corporations are subject to regulation by the people.
• Corporations may not make campaign contributions or any election expenditures.
• Congress and states have the power to regulate campaign finances.

Amending the Constitution is, obviously, no simple task. Article V governs the process. It lays out two methods of proposing amendments. Congress may propose an amendment to the states with two-thirds approval of both houses. All of our amendments have been proposed this way. Alternatively, two-thirds of state legislatures may call a constitutional convention to propose an amendment. This has never been done. 

Ratification must follow proposal and, as with proposal, there are two ways to do it. Three-fourths of the states must ratify a proposed amendment either by way of their legislatures, or by holding a constitutional convention. Only the 21st Amendment, which abolished prohibition, was ratified by way of convention.

To illustrate the difficult path that Sanders' amendment will have to travel, it's worth revisiting the battle over the Equal Rights Amendment (ERA). The ERA was written by suffragist Alice Paul in 1921, and first introduced in Congress in 1923. Its introduction followed the 1920 ratification of the 19^th Amendment, which extended equal voting rights to women. It wasn't until 1970, after concerted actions by women's groups that included the instrumental Women's Strike for Equality, that Congress began hearings on the ERA. Two years, Congress passed it with two-thirds majorities and presented the amendment to the states for ratification. The text of the amendment is as follows:

• Section 1. Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.
• Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
• Section 3. This amendment shall take effect two years after the date of ratification.

Congress imposed a seven-year deadline for the states to ratify the ERA. Even after Congress extended the deadline for three more years, the ERA only received 35 of the 38 states necessary to ratify the amendment. Some of those states have since rescinded their ratification, while others have amended their state constitutions with language similar or identical to the ERA. The ERA has been introduced during every session of Congress since 1982.

If the states couldn't even agree on an amendment that affords women basic formal equality under the law, they are unlikely to agree on the obviously contentious Saving American Democracy Amendment. It's certainly not impossible. We have, after all, amended our Constitution seventeen times since the initial ratification of the Bill of Rights. Yet in a highly polarized political climate, let's not expect much progress in the near future. Stay tuned for an upcoming post on what we can do in the meantime.