Is a 28th Amendment Actually Possible?

money in politics

What will it take to get corporate money out of politics? Nineteen states so far have formally called on Congress to restore power to citizens through a 28th amendment to the Constitution to overturn Citizens United. While the prospect of creating and passing a constitutional amendment is daunting, that number is actually already half the 38 states required to ratify one once it passes in the Senate and the House of Representatives by a two-thirds majority.

Creating and passing an amendment might seem like an impossible goal—the 27th, which says Congressional salary increases won’t take effect until the next election cycle has passed, was ratified more than a quarter-century ago (1992), and the Equal Rights Amendment failed to pass during its ratification period starting in 1979 and extended to 1982. But the truth is that a small flurry of amendments passed in the 1960s and early 1970s—the 23rd says Washington DC gets representation in the Electoral College (1961), the 24th prohibits poll taxes (1964), and the 25th addresses succession to the presidency (1967). The 26th amendment, which was ratified in just 3 months in 1971, lowered the voting age to 18, addressing the absurd disparity between the age at which draftees were being sent to Vietnam and the age at which they had any say in federal policy.

Overturning Citizens United and returning political power to the people resonates across the ideological spectrum in a similar way. According to a Bloomberg poll in 2015, 78 percent of respondents said the decision should be overturned. Only 17 percent liked the 2010 ruling that corporations and unions may spend unlimited amounts on political causes. There was bipartisan agreement too—80 percent of Republicans and 83 percent of Democrats opposed Citizens United.

Because the court decision established a new interpretation of the First Amendment, it will be difficult to abolish without either a new court decision (unlikely under the current Supreme Court) or a new constitutional amendment. Several notable attempts have been introduced in Congress, but none have moved beyond the committee level.

Because urging Congress to take action is a little like tilting at windmills these days, an organization called American Promise has taken the lead on figuring out what the amendment should say, with the Writing the 28th Amendment Project. Last month, the group kicked off a national tour with an event in Boston, where Congressman Jim McGovern and other constitutional experts discussed what such an amendment should include.

“Money plays too big a role in our politics,” McGovern said at the meeting. “Whether it’s our health care, whether it’s on climate change, whether we go to war or not, money is at the root of all these decisions. We need to change that equation.”

He quipped at one point that if Congress could vote anonymously on campaign finance reform, it would win easily, because all lawmakers prefer working on policy to calling donors. “What we want is people in government spending more time reading, listening, deliberating, and meeting with constituents.”

McGovern has co-sponsored congressional amendment bills, but agreed with organizers that the effort would be more productive if the language came out of a process of popular consensus-building and could be taken to legislators with the support of the people and the states behind it.

American Promise plans to take its show on the road, organizing events in St. Louis; Columbus, Ohio; and Washington, D.C. in coming months, and promoting a pledge for candidates to sign, committing them to working toward a 28th Amendment.

“This is one issue that, if we get it right, we can build a lot of public support,” said McGovern.