Tuesday, August 26, 2014

an amendment

I get a lot of fundraising emails about overturning the Citizen's United decision that gutted election laws and gave free speech rights to corporations. I followed the most recent fundraising email here. Here is another. One more here. Last one to prove there are a lot.

I get the feeling that this is not a serious movement and there is no chance to pass a constitutional amendment to overturn Citizen's United or abolish corporate personhood. To pass 2/3 of the states, the amendment would have to make it through some pretty red states. And corporate funders would have a huge advantage, only having to stymie the movement in 17 states.

This kind of amendment depends on a fundamental change in our politics and real democracy to pass. We don't have anything like a real democracy now.

Not only is it impossible to pass such a constitutional amendment, it isn't necessary. The problem is the Supreme Court. The Supreme Court has been a problem at other moments of history. We had a slave-owner court, an anti-New Deal court, an anti-regulation court in the era of railroad domination... some pretty terrible courts.

If you are going to go through all the trouble of passing an amendment to the constitution, why not fix the court itself so that fewer Citizen's United decisions happen, and if they do happen, that they do not sit there as settled law?

Here is what I would propose as a constitutional amendment:
Federal Judges shall be appointed by the President for 12 year terms. They shall be confirmed by the Senate. At twelve years time, the Senate may vote to extend the judge's term for an additional 6 years. Federal judges may serve no more than 18 years. This amendment will apply to future vacancies, not sitting judges. 
How would shortening the terms help? Well, the court would not be such a dinosaur and so out of touch with social values. If they make a bad decision, that decision would last a shorter time. And this might appeal to some Republicans, especially if a Democrat wins the next presidential election.

Plus, it would just be better. Instead of nominating young, partisan judges who obviously went to law school, then worked to get a judgeship, in a relentless kind of way with no real world experience, we might get someone like, say, Bill Clinton after they are done being president, you enough for 18 years, but not young enough to sit as a judge for 30 or 40 years.

The court would be more interesting. Their decisions would not be so legalistic/nutty. A very bad judge could less damage. This proposal should appeal equally to Republicans and Democrats. Republicans know they are not going to have a majority in the Senate and a president for very long or with any kind of regularity, so they would like a proposal that might leave them some judgeships if they ever do become popular again. People on the left have been on the losing end of dinosaur courts -- all the of courts I notes above -- 1930s, 1890s, 1850s and the last 20 years -- because they are routinely out-hustled and out-hardball politics played.

So, that's the solution to Citizen's United, in my opinion.

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