I offered this testimony today to the Massachusetts Joint Committee on Veterans and Federal Affairs on three proposed bills to press the question of an amendment to address issues of representational integrity, and if Congress fails to act, to call for an Article V convention. I was encouraged that Common Cause did not repeat its baseless claim that an Article V convention could amend the rules for passing an amendment. But here we are, still, with a united institutional left opposing the only thing that could possibly address fundamentally the corruption of our democracy. Whether or not there is support for a convention, however, there should at least be support for the idea I raise at the end here.
I am grateful for the opportunity to testify to your committee on the three Citizens United-related proposals that you are considering — H.3658, H.3657, and S.2402. I offer this written supplement to my oral testimony to both explain more fully the suggestion I made, and to respond more directly to the suggestion made by Common Cause and others that it would be better for America to wait on Congress to propose an amendment to address the problems we all agree are fundamental.
Here is the fact: You know that if you wait for Congress, nothing will ever be done. An amendment in Congress requires the vote of 2/3ds of both Houses. I do not believe that there are 3 Republicans in the United States Senate who would vote to overturn Citizens United. There are certainly not 16. And even if the Democrats were to gain substantially in the United States Senate, there is no chance, given the political make-up of the United States, that the Democrats would get anywhere close to a 2/3ds majority in the Senate, let alone a 2/3ds majority in a radically gerrymandered House of Representatives.
The decision to rely on Congress is therefore a decision not to address the corrupting influence of money in politics. And however optimistic good souls across the nation are that somehow, someday, we will be able to persuade the Republican leadership in Washington to rediscover their Teddy Roosevelt roots, no credible judgment could believe that is going to happen anytime soon.
There are many in America who are okay with that. They are the same people who benefit from the corrupting dependence of the current system. The consequences of that corrupting dependence are real and tangible — they have blocked climate change legislation, they have kept the cost of health care high and unaffordable to many, and they continue to drive America to spend ungodly sums on weapons of war and destruction. To rely on Congress to propose an amendment is to embrace these consequences for the foreseeable future.
I understand well the fear a convention creates. Since I published my first book calling for a convention in 2011, Republic, Lost, I have had many people express that fear to me, sometimes quite passionately.
Yet our choice as a nation is not between a risky future (with a convention) and an unrisky future (without a convention). Maybe a convention creates a risk. But if there is no convention, then there is only the certainty that these problems will not be addressed. At the very least, the opponents of a convention should have the integrity to admit that reality — and then explain how our democracy can survive it.
In my oral testimony, I addressed the concern that the one path that I saw open to us to possibly address this democracy defeating reality — a convention — would be destroyed by the poison of partisanship. I believe that within the next 2 years, the balanced budget convention movement will have enough support to demand that Congress call a convention to propose a balanced budget amendment. And while I don’t believe such an amendment would be ratified in America, I do believe that the fight against that amendment will destroy the opportunity of any future Article V convention. Partisan politics (and an easy opportunity to raise money on the basis of fear, and in some cases, ignorance) will frame that convention in a way that assures it fails. And that, in turn, will assure that no other convention can happen in the future.
Again, because I believe that there is no hope for a constitutional amendment to address issues of representational integrity, except through a convention, I believe it is urgent that supporters of a convention do what we can to avoid this partisan framing. That’s not to say we should support a balanced budget amendment. But we should take whatever steps are possible to assure that if there is a convention to address issues of fiscal integrity, there would also, and at the same time, be a convention to address issues of representational integrity.
The simplest way to create that pressure would be for Massachusetts, and 12 other states, to pass resolutions that preemptively reject any amendment proposed by a convention that is limited to considering issues of fiscal integrity. If 13 legislatures adopted such a resolution, then arguably, any amendment proposed by a balanced budget convention would be immediately rejected. That reality may open the minds of supporters of a fiscal integrity convention to the idea of supporting a representational integrity convention as well.
No doubt, any convention risks proposing amendments that some of us don’t like. I am encouraged that the testimony from Common Cause did not include an argument that they have made before — that a convention would have the power to change the rules for adopting any amendment it proposes. That is certainly not true. But it is true that if 3/4ths of the states support an amendment, including amendments that go against what we take as fundamental, that amendment would be ratified.
But let’s be clear about the numbers: If even if just one house in 13 states votes to block an amendment, that amendment is defeated. I am like many anxious and skeptical of much in America today. But do not believe that any idea that we all hold to be fundamental would fail to secure the support of one house in at least 13 states.
Even without a convention, and even without an amendment ratified by 3/4ths of the states, our Constitution has already been amended. At one time — however imperfectly, and considering women and African Americans, never with full justice — our representative democracy worked. We, as a nation, took on hard problems, and we solved them. It was during the Nixon Administration that the EPA was launched. And with the support of many Republicans, our country has tackled critical issues of wealth and racial inequality — in the past, but not today.
That representative democracy is no more. Instead. our government now is captured by special interest money. That’s why we could spend $6 trillion on unwinnable wars over the past 20 years, while doing so little to support middle-class and working Americans, or pass any law to address climate change fundamentally, or to assure the growth of non-crony capitalists. We face enormous challenges as a nation. And yet our Constitution has been amended — by the Supreme Court — to make solving those problems sensibly practically impossible to imagine. You know this is true. You watch this truth every day in the context of your work.
I understand fear. I don’t understand allowing fear to stop us from fighting to restore this democracy, and taking whatever chance we must to make that fight succeed. Massachusetts should take the lead in this fight. I hope that this committee will take the first step, by recommending the passage of H.3658 and S.2402 unamended, as well as considering a resolution to assure that the idea of a convention is not destroyed by partisanship.
