Senate, House panels pass memorials urging amendment to U.S Constitution overturning Citizens United decision

By Matthew Reichbach

Sens. Eric Griego and Steve Fischmann discussing their proposals to call for a constitutional amendment to overturn the Citizens United decision. Photo by Matthew Reichbach.

Committees in both the Senate and House have approved memorials that call for Congress to pass and send back to the states for ratification an amendment to the U.S. Constitution that would overturn the controversial and unpopular 5 to 4 Citizens United decision by the Supreme Court in 2010.

The History

The Citizens United decision allows corporations to contribute an unlimited amount of money to groups that support or oppose candidates. It swept away decades of campaign finance law aimed at reining in the influence of money in politics.

This is a tradition of reform that dates back as far as the Tillman Act of 1907 that was signed into law by President Theodore Roosevelt and banned direct corporate contributions in federal election campaigns.

Because this Supreme Court decision now trumps anything that Congress could do on its own, a constitutional amendment is the only recourse. Seven times previously in our nation’s history, the constitutional amendment route has been used to reverse Supreme Court decisions.

The most prominent example is probably the Fourteenth Amendment that was needed to overrule the pre-Civil War era Dred Scott decision, which enshrined Chief Justice Roger Taney’s constitutional interpretation that said black people were not, and could not become, citizens of the United States or enjoy any of the privileges and immunities of citizenship.

Legislative action

Fast forward to 2012 in Santa Fe, New Mexico. On Thursday the House Consumer and Public Affairs Committee voted to give HM4 a “Do Pass” recommendation, sending it to the House floor. It passed on 3-2 party line vote with Democrats in support and both Republicans voting against.

Friday morning, two Citizens United memorials moved forward with bipartisan support as the Senate Rules Committee unanimously gave a “Do Pass” to SM3 and SJM24. Two Republican Senators joined with the five Democrats in support of the two measures which now move on to the Senate Judiciary Committee.

UPDATE:

Sens. William Burt (R-Alamogordo) and Stuart Ingle (R-Portales) later changed their votes to vote against the memorials. The official vote is 5-2.

“I heard all the time from my constituents and the public in general about the lack of confidence in our political system,” Rep. Mimi Stewart (D-Albuquerque), the sponsor of the House memorial, said during the hearing. “And really the biggest complaint is money in politics.”

Sen. Steve Fischmann (D-Las Cruces), the sponsor of the Senate memorial, said that he invests in some mutual funds who could use that money to spread messages that he does not agree with and that they are “usurping” his free speech.

“I don’t think that’s democracy,” Fischmann said.

Sen. Eric Griego sponsored the Joint Memorial which echoes a national proposal by U.S. Sen. Bernie Sanders (I-VT). Fischmann said his memorial allows more latitude in approaches to undoing the harm caused by the Citizens United decision.

At last count, five amendment resolutions addressing Citizens United have been introduced in the congress, including one by New Mexico Senator Tom Udall.

In explaining his opposition, Dennis Kintigh (R-Roswell) said he would be “hypocritical” to vote for the memorial because he was the recipient of a huge amount of money when he defeated House Minority Whip Dan Foley in a 2008 party primary. (Heath Haussamen reported extensively on that race – here and here.)

“I would not have succeeded without significant funding,” Kintigh said.

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Is “Wild West” of campaign spending back before it ever left?

By Matthew Reichbach

Before campaign finance reforms were passed in 2009, the Wall Street Journal referred to New Mexico as the “political wild west.” In addition to a non-paid state legislature, no webcasting of legislative proceedings and no independent ethics board, the lack of campaign contribution limits was cited. Now, parts of the landmark contribution limit law that was passed in 2009, and which took effect the day after the 2010 elections, were put on hold by a district court judge.

U.S. District Judge William P. Johnson’s decision would allow state parties to receive unlimited donations from individuals or corporations. However, candidates themselves and organizations that coordinate with candidates would still only be allowed to receive donations of $5,000 per election from an individual or organization (with primaries counting as separate elections from the general elections).

The preliminary injunction went into effect immediately because the 2012 election cycle is already underway.

“Considering that the 2012 election cycle is in full swing and considering that the desired activities of Plaintiffs involve political free speech and association rights during an election year, this Preliminary Injunction shall remain in effect pending appeal unless stayed by the Tenth Circuit Court of Appeals,” Johnson wrote.

Citizens United lawyer James Bopp Jr. represented the State Republican Party in the lawsuit. As Clearly New Mexico reported at the time:

Joining the state Republican Party in the lawsuit are the county Republican Parties from Bernalillo and Dona Ana County, [State Sen. Rod] Adair [R-Roswell], Rep. Conrad James (R-Albuquerque), former New Mexico Republican Party chair Harvey Yates, Santa Fe resident Howard James Bohlander, and Hobbs resident Mark Veteto. New Mexico Turn Around, a political committee with ties to the state Republican Party and the Rio Grande Foundation, and the New Mexicans for Economic Recovery PAC are also plaintiffs on the suit.

Johnson decided to allow the unlimited contributions because of the controversial, and unpopular, Citizens United Supreme Court decision which allows unlimited funds to be used in aid or against a candidate.

Johnson quoted the decision by the Supreme Court, written by Chief Justice John Roberts:

“Laws that burden political speech are” accordingly “subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”

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