What To Do About Citizens United v. Federal Election Commission?

The gravity of the situation can't be overstated. Chief Justice Roberts has thrown down the gauntlet. Either he'll remake the country along the lines of his extremist ideology or the country will revolt.

Roberts' ruling took everybody by surprise. I'd been watching for it, and I expected that the consensus guess among experts was probably correct, that the Court would find for Citizens United but in a narrow way. (That still would have been a serious problem but it would have been more manageable.) As far as I know nobody had predicted a revolutionary constitutional change.

Surprise probably explains the panicked bluster from Congress and from the White House. In reality, however, there's not much now that they can do, using ordinary levers of power, to curb corporate political spending. New legislation or new regulations won't help because, given the ruling's scope, those would, ipso facto, be unconstitutional. The conflict (as I suspect Chief Justice Roberts failed to consider) must be resolved at a much higher level.

I see only four options. The first is a counter-coup by the President. Federal Marshalls arrive at the Supreme Court to take Chief Justice Roberts away. Perhaps to Guantanamo. The odds of this happening are less than one percent but if unlimited corporatist spending were to continue for several decades I should think the odds would increase to at least even money, because absolute corporatist power would chafe at even the appearance of independence from the judiciary.

The second option is for the Congress to have running skirmishes with the Supreme Court. Packing the Court with new Justices probably won't work, at the moment, given the composition of Congress, the reluctance of the Democratic Party to go to the mat and eliminate Rule 22, and the temperament of the public. But some courageous member(s) of Congress could push for Roberts' impeachment. Others could try to cut the budget of the Court — perhaps even down to nothing. Clearly there are any number of ways Congress could harry the Court to send a message. I doubt such efforts would be enough to obtain a reversal of the ruling but it would be worth experimenting to see how the Court might react.

The third option has gotten immediate attention, and it's one with a fair-to-excellent chance of success, namely, to pass a new constitutional amendment. It'll be extremely interesting to see how people mobilize themselves around this possibility and how, exactly, such a proposed amendment might be worded. But even if an amendment reversing the Roberts ruling were adopted it would do nothing to directly address the multitude of other fundamental, structural political problems that we face (though it could serve as an important precedent for further reform).

The fourth option — per Article 5 of the Constitution — is to have a new constitutional convention to rewrite the American system of government. That's my preference. Before the Roberts ruling I was unsure whether I'd see a new constitutional convention in my lifetime but now I'm beginning to be slightly optimistic that I might.