End the flood of ‘dark money’ unleashed by Citizens United

A constitutional amendment is the only way to restore founding principles 

WHEN THE FOUNDERS wrote “We the People” do you think they were intending billionaires and corporations to have the same inalienable rights as you and me? We do not think so, says the Massachusetts Citizen Commission Concerning an Amendment for Government of the People. 

The 2020 elections set a record for spending, about $16 billion so far with even more not yet counted. For context, total spending in 2016, the previous record, was a bit more than $6 billion.  

Consider these examples. In Georgia, two US Senate races are drawing hundreds of millions in “indirect expenditures” and “dark money,” flooding the state’s 4 million voters with negative ads and robocalls. In Maine over $100 million poured in to influence how that state’s 1.3 million citizens decided their Senate election. In New Hampshire, with less than 1 million voters, in their 2016 election for Senate over $90 million was spent, with 99.5 percent of this money coming from a few concentrated sources outside the state 

This deluge of dark money comes from – well, we really don’t know where it comes from. Billionaires, unions, global corporations? Does any American really believe this is what the Founders had in mind when they adopted the Constitution? Do the “originalist” justices of the Supreme Court, who ruled that “corporations are people,” feeding this torrent of dark money, really believe this is what the Founders had in mind? 

Ten years ago, the Supreme Court decided the case Citizens United v. Federal Elections Commission, which nullified the bipartisan law regulating the raising and spending money in elections. This decision opened the floodgates for corporate and unregulated money in our political process. 

In the intervening time the amount of corporate and unregulated spending has increased exponentially. In 2010, before the decision in Citizens United, so-called indirect expenditures (think of PACs and super PACs and “dark money”) amounted to a minuscule fraction of total spending; by 2016 it was over $1.4 billion, a 50-fold increase in six years. 

In the November 2018 election, 1.8 million Massachusetts voters (71 percent) approved a law to establish the Citizens Commission to examine five issues related to outofcontrol spending in elections. After extensive research and testimony at 20 public hearings the commission issued its first report in January, making findings about the damage to democracy and representation of the people since the Supreme Court invalidated many campaign finance laws on a theory that unlimited election spending was “free speech” under the First Amendment. In August, the commission issued its second report, which addresses specific recommendations for constitutional amendments to protect the free speech rights of all Americans and address the undue influence of concentrated money in elections. The commission was also asked to recommend sound constitutional amendment language to affirm that artificial entities—such as corporations and unions– do not possess the inalienable constitutional rights of the people. 

To advance the amendment leading to ratification the commission’s report details a multi-dimensional strategy. The strategy should be driven by the citizens. It should be non-partisan, seeking support from all political parties. And it needs a grass-roots approach across all the States.  

A link to the January can be found here  and a link to the August report can be found here. 

Massive spending from corporate and other entities is a root cause of the widely shared belief that money has a corrupting and negative influence on elections and the behavior of elected officials. Numerous studies, and testimony received by the citizens commission, show most Americans believe that they are not represented and have little voice in government. Below is a sample of the commentary from the numerous public meetings conducted by the citizen commission around Massachusetts: 

  • “Congress is not responsive to the people. Members of the US Congress are forced to devote a large proportion of their time on fundraising, rather than doing their jobs.” – David Rosenberg, Norfolk, MA 
  • “The country has been taken over by the greed of special interest groups and lobbyists.”- Ann Ferry, Cape Cod, MA 
  • “America once prided itself on being a beacon of democracy for the world but now we are more of an oligarchy ruled by corporations and billionaires. I feel like my voice is being drowned out by special interests.” – Sandy Theodorou, Beverly, MA 

Changing a ruling of the Supreme Court requires a constitutional amendment. The process to amend the Constitution is difficult — a two-thirds vote of the House and Senate followed by ratification by three-quarters of the states. In our history there are only 27 amendments. While the process is hard it is important to note that many of the amendments have been specifically for the purpose of overturning decisions of the Supreme Court. 

The state commission report and its recommendations were recently submitted to Gov. Charlie Baker, Attorney General Maura Healey, Secretary of State William Galvin, House Speaker Robert DeLeo, and Senate President Karen Spilka. Elected officials on Beacon Hill and Capitol Hill need to hear from constituents who are concerned about outofcontrol spending in elections. 

Enabling Congress and the states to reasonably regulate raising and spending money in elections is not a partisan Democrat versus Republican issue; it is not a liberal versus conservative issue; it is a good government issue that merits support from all parties and political philosophies. 

Meet the Author
We must not be complacent in the face of corruption. We must not let the self-interest of corporations and the billionaire class stand in the way of fixing one of the biggest issues of our time. We must not let the error of 2010 stand uncorrected any longer. It is time that “we the people” take back control of our electoral system. 

William Kilmartin served as co-chair of the Massachusetts Citizens Commission Concerning a Constitutional Amendment for Government of the People.