It is awarding the presidency to the candidate who wins the most votes.

“The United States is not a democracy and shouldn’t be,” said Michael Munger, Duke University’s Political Science Department chairman and a 2008 Libertarian gubernatorial candidate attacking it at a League of Women Voters forum. “There is NO moral force in the majority. It is just what most people happen to think.”

These right-wingers are truly worried that a plan reforming the way the president-electing Electoral College works is gaining legal ground and could bring the biggest change in the political landscape in decades. The National Popular Vote plan would replace the current system, in which states award Electoral College delegates to whomever wins the presidential vote in that state, with a new interstate agreement where a participating state’s delegates would be bound to the national popular vote winner.

In other words, as soon as states with a total of 270 Electoral College delegates sign on—and they are halfway there—presidential elections where one state swayed the outcome, such as Ohio in 2004 and Florida in 2000, would be no more.

“It is born from a frustration of a system that is inherently broken, a system that allots two-thirds to three-fourths of resources in a presidential campaign in the last six or seven weeks to six states. That isn’t democracy,” said Pam Wilmot, Common Cause’s National Popular Vote coordinator. “We cannot and should not have a small number of states deciding the outcome of presidential elections for the rest of us.”

The idea that voters across the country—not just in politically split battleground states—would elect the president scares the Republican Party and arch conservatives on so many levels. It would upend the way candidates and political parties and consultants now work to retain their power and influence. It would force presidential nominees and parties to campaign in more racially diverse states, more cities and suburbs, addressing those communities and their concerns.

“We need to kill it in the cradle before it grows up,” McConnell told a Heritage Foundation audience last December.

Right-wingers say these changes are terrible, and not just because they might empower Democrats and relegate the GOP as it now exists to history’s dustbin. But even worse, they say this is a constitutional coup because the founders’ great insight was that some branches of the government—such as the presidency and Senate—had to be set apart from the passions of majority opinion and the tyranny of mob rule.

“It is a completely faulty intellectual argument,” said NPV founder, Stanford University’s John Koza. “It is oblivious to the fact that the mob rules now. In the first presidential election, only five states let people vote for president. And many of the founders, like Alexander Hamilton in New York, were very happy that the people did not vote for president. But it was left up to the states if people voted for president, and now 100 percent of the states let people vote for president.”

“So if you are against mob rule, you are against what we have now,” he continued. “The mob is Ohio, Pennsylvania and Florida, which dominate presidential elections. The question is whether there is some virtue in having the mob in 35 states ignored in preference to the mobs in 15 states. It is a completely silly argument.”

National popular vote’s right-wing detractors are first drawn to the partisan implications, suggesting that this is a potential blue-state bonanza born out of revenge for Al Gore’s loss to George W. Bush in Florida in 2000. Then they are quick to point out that widely held contemporary notions of what our democracy consists of are wrong—and are not what the founding fathers envisioned at all.

“Democrats love this idea,” said Michael Uhlmann, professor of politics and policy at Claremont Graduate School and frequent Heritage Foundation speaker, in a recent debate with Koza. “Any Republican and conservative who signs onto it needs a psychiatric examination. These people aren’t foolish. There are real constraints imposed by the Electoral College system.”

Right-wingers like Uhlmann say that because human nature cannot be trusted, the founders created key governing bodies that were not elected, but instead consisted of wiser “elders” whose decisions put brakes on more impulsive majorities. The U.S. Senate was one such body and until the 17th Amendment passed in 1913, senators were appointed, not elected. The Electoral College, where 48 states (Nebraska and Maine are exceptions) award all their delegates to the state’s presidential victor, is another, because it spreads the real constitutional act of electing the president to special legislators who meet once every four years.

“The criticisms of the institutions of the Electoral College, based on an assumption that there is a mystical ‘will of the people’ that can be divined through elections, are misguided,” said Munger. “There is no better system for controlling political excesses, and forcing presidential candidates to represent the entire nation, that that created out of the original wisdom and compromises of the early 19th century.”

But according to Koza, who launched the National Popular Vote movement, there is a far better system: engaging the majority of American voters in choosing the president.

A national popular presidential vote is the natural next step in the country’s constitutional evolution that has expanded voting rights to all citizens in every state; not just to males, millionaires, landowners and slaveholders, as was the case when the nation was founded, Koza said. NPV elevates voters in every state, not just in tightly divided battleground states. Moreover, the conservatives’ obsession about insulating the presidency from mob rule does not hold up to reality, he said.

But it is perhaps the best argument the hard right has—because everything else they have thrown at NPV and are likely to throw at it as it comes closer to becoming a political reality—eight states plus the District of Columbia have signed on—is unlikely to prevail in federal court. Even noisy critics, like the Wall Street Journal’s James Taranto, admit NPV “is not unconstitutional.” He just hopes it is “unenforceable.”

“Our bill is an interstate compact,”  Koza said. “A state cannot get out of an interstate compact except on the terms of the compact itself. There’s 200 years where no court has ever allowed any state to weasel out of an interstate compact. It’s higher than the state Constitution. When a state enters into an interstate compact, it’s more binding than the state Constitution is.”

NVP: The Fine Print

The idea of a national popular vote to elect the president is not new. What is new is using the legal vehicle of an interstate compact, not a constitutional amendment, to get there.

The current national popular vote movement emerged out of a growing frustration with recent presidential campaigns. What happened in 2000 in Florida, when Al Gore won more popular votes nationally than George W. Bush but the Supreme Court intervened and awarded the presidency to Bush, was a turning point. But there have been other long-simmering frustrations with the way presidential elections unfold, most notably how most of the country is left watching the action in a few other states.

“You just can’t have an election coming down to 500 people or 20,000 people in an entire nation. It’s just crazy,” said Common Cause’s Wilmot. “The reason that it has such appeal is a basic sense that is consistently held in every demographic—Republican, Democratic, old, young, black, white—that the person with the most votes should win, and that every person’s vote in the election should count the same. And neither of those are true in our current system. And they feel it is wrong. And it is wrong.”

Wilmot is correct about NPV’s support. Majorities of American overwhelmingly back replacing the current Electoral College system with popular vote election of the president, according to Gallup, whose polls have tracked the issue for years. And it is not just Democrats who support this, although 71 percent of Democrats said they did, compared to 61 percent of Independents and 53 percent of Republicans polled last fall. But the Republicans who support NPV are cut from a different political cloth than the RNC leadership or conservative think tanks.

“I believe this is a center-right country and that our conservative ideas and ideals will win the day if we take the argument to all the people, not just those in battleground states,” wrote Laura Brod, a Republican member of Minnesota’s House since 2002. “There is a conservative story in favor of a national popular vote to be told.”

The U.S. Constitution grants state legislatures complete power over selecting Electoral College delegates. So the National Popular Vote movement has been working in 42 states to push for identical legislation to join an interstate compact binding their delegates to a presidential popular vote winner once enough states representing 270 delegates sign on—the Constitution’s requirement to elect a president.

Since 2007, eight states—Maryland, Illinois, Washington, New Jersey, California, Vermont, Hawaii, Massachusetts—and the District of Columbia have passed identical legislation, representing 132 delegates. The Republican critics like to note these are all blue states. Koza, in contrast, calls them “spectator states” that are tired of sitting on the national political sidelines.

“Every state that has enacted this is a spectator state,” he said. “And it is a much more difficult sell in the battleground states because the desires of the people who run the legislatures appreciate the current system, even though the voters of those states don’t support the current system. Look at the polls.”

The NPV compact does not replace the Electoral College; it modifies how states instruct their presidential electors to proceed, which is exactly what the Constitution tells states to do in Article Two. Massachusetts, for example, has done that nearly a dozen times in the past 200 years. It does not tell states or parties that they cannot hold the primaries and caucuses as they are now doing, starting in Iowa and New Hampshire. But after parties nominate their candidates, their picks would need to campaign in far more states and regions than is now the case. In effect, presidential elections would become national contests where candidates would have to speak to a broader range of voters.

“You’ll have to turn out your base,” said Wilmot. “There will be a get-out-the-vote effort everywhere, because you need to turn out your voters and every single one that you turn out is going to add to your total nationwide. And every one that is left at home is one you have to replace somewhere else, or else the other side will beat you in the ground game.”

A handful of states may pass the compact in 2012, Koza said, but presidential election years typically see shorter legislative sessions. Connecticut is a priority for Common Cause, Wilmot said. Other states are holding hearings, like Kansas and Alaska recently did. And there are ongoing efforts in states like New York, where it passed one legislative chamber but was not adopted by the other.

Here Come the Lawyers

The NPV compact’s authors know the law will be challenged in federal court once states representing 270 Electoral College votes sign on. They are confident that the compact is constitutional, which even some right-wing critics concede. Opponents have begun to claim it is unenforceable, saying that the chief election officer in a compact state cannot order a political party’s slate of presidential electors to vote for a candidate who did not win in their state. But Koza and other NPV backers say, yes they can, because state legislatures have absolute authority under the U.S. Constitution to do that.

That scenario, which one critic in Connecticut said “would substitute the will of outsiders for the determination of Connecticut citizens,” is a non-issue, Wilmot said, because Article Two gives states “plenary,” the legal term for complete, power to establish rules over their state’s presidential electors.

“The election [of the next president] is in December [when the Electoral College meets], but for all intents and purposes for the American public, it’s on Election Day in November and the winner is declared at that time,” she said. The December meeting essentially becomes a “ceremonial, rubber stamp.”

Legal challenges would not delay the seating of the next president, she said, because the U.S. Constitution sets a timetable. That is different from Minnesota’s 2009 recount in its U.S. Senate race between Al Franken and Norm Coleman, which took months, because the U.S. Constitution does not have a timetable for seating U.S. senators.

Still, there will be no shortage of fear-based criticisms aimed at NPV as it edges closer to having states sign on with the needed 270 Electoral College delegates, but most of those have been rebutted in Koza’s book (available as a free download at the NPV Web site). That chapter, responding in great detail to “myths” about NPV, is 248 pages long.

One big misconception is the 12 largest states would become presidential deciders, Koza said. “That’s based on the misconception that the 12 largest states are controlled by the same party, but they’re not,” he said. Another misconception is the big cities will edge out small states in the presidential election process. “That’s factually wrong. A small state, Iowa or New Hampshire, is playing a big role in the nomination process,” Koza said, noting that NPV only affects the November election results. “Small states don’t become the presidential battlegrounds. They are just as ignored as the Californias.”

NPV would change the way money is spent in campaigns. No matter what vote counting system is in place, presidential campaigns always seek to raise as much money as they can—and then are forced to spend it wisely. NPV’s impact would be on the spending side, as the campaigns create and budget for messaging in different regions and media markets.

“Currently, TV is the biggest way money is spent. Remember TV markets are not just limited to cities,”  Koza said. “They would campaign the way they do now. They would have personal messages and buy TV and radio and bumperstickers and print leaflets and do precinct walking—all of which can be delivered to any point in any state.”

And what of the right-wing critics who will continue to assert that America is not a democracy but a constitutional republic where the majority of voters should not get to vote for president—and for good reason, because of the tyranny of mob rule?

“Open a dictionary,” Koza replied. “Whether you are a democracy or not has nothing to do with whether you have a winner-take-all [Electoral College] rule. The president will still serve for four years. The federal legislature will still serve for two or six years, and they will make decisions on behalf of the public between elections. That’s the definition of a republic. These people who babble about democracy versus republic have never looked in the dictionary.”

The two approaches can be seen in the protest signs and sound bites proclaiming, “Money is Not Speech” and “Overturn Corporate Personhood.” But these slogans are not calling for the same remedy, especially when transformed into legal language in 10 proposals that have been introduced in the current Congress.

The first would address campaign finance setbacks in a 35-year line of Supreme Court rulings, including the Citizens United ruling in 2010, which deregulated campaign spending by corporations and unions. The second would go further and seek to revoke the status of corporations as persons under the Constitution, rolling back more than a century of Supreme Court rulings.

These two approaches expose an emerging split among progressives with deeper problems that go beyond the steep if not improbable political climb required to adopt any constitutional amendment: passage by two-thirds of Congress followed by ratification by three-quarters of state legislatures.

With a few exceptions, the growing movement to overturn Citizens United and revoke corporate personhood is not being taken seriously beyond America’s liberal communities. The guardians of American capitalism—the U.S. Chamber of Commerce and Republican National Committee—do not even feel a need to attack it, unlike recent barbs aimed at the National Popular Vote campaign to reform the Electoral College.

Corporate America’s assessment that this activity is not yet a serious threat to their power is also shared by another key sector of the progressive spectrum. Many of the country’s top liberal constitutional scholars have been silent, as this bandwagon has gathered momentum. They sympathize with its goals but think its champions are not only overpromising to grassroots supporters but have not thought out what they want Congress to do. Nor do they think the frontline voices have done a good job explaining what is at stake beyond hurling bumper sticker slogans. In other words, they reach the same conclusion as America’s corporate titans: this clamor is not yet poised to upend the law behind America’s political system.

“I am really excited about the fact that there is so much public interest in this stuff and on the right side—the visceral sense that the Supreme Court has got it wrong,” said Dan Tokaji, co-editor of Election Law Journal and an Ohio State University professor of law. “But at the same time I’m uncomfortable with the bumper sticker-like critiques. It’s not like there’s a magic bullet. Every solution has a downside. It’s a matter of weighing costs and benefits. And that is especially true in campaign finance reform.”

“I do think the body of law from Buckley through Citizens United to Bennett needs readjustment, and I helped Rep. Donna Edwards draft one potential constitutional amendment,” said Harvard Law School’s Laurence Tribe, one of the country’s leading constitutional scholars and a man liberals lobbied President Clinton to appoint to the Supreme Court. “But most of the constitutional amendments floating around seem to be seriously misguided; they would do both too much and too little.”

Such skepticism is not what amendment proponents, particularly those favoring the most sweeping ideas, believe or want to hear. They say there is a danger in doing too little; that a populist campaign is needed and working; and that an amendment reserving constitutional rights only for natural persons is on par with the post-Civil War amendments ending slavery and protecting former slaves as citizens.

“We are doing movement building in order to win a constitutional amendment within a decade,” said David Cobb, the 2004 Green Party presidential candidate and board member of the Move To Amend coalition, which has led much of grassroots organizing. “We have a meta-perspective about what is going on, but we also have a sense of movement history; in recognizing what it takes to actually get a lot of people in motion demanding systemic change. Our call is no more radical or will be no more difficult than the abolitionist movement, the women’s suffrage movement, trade union movement or the Civil Rights movement.”

But liberal skeptics also include groups that have been helping local governments adopt laws subordinating corporate rights to community and individual rights in a range of environmental fights. These ordinances are below-the-radar equivalents to the recent Montana Supreme Court decision that upheld its century-old ban on corporate electoral spending. They all make a “compelling” claim, the highest standard in constitutional law, to affirm democratic rights.

“They’re good people and their heart is in the right place, but they’re not being helpful—as a matter of fact, they are doing damage,” said Ben Price, project director of the Community Environmental Legal Defense Fund (CELDF), which has helped 130 municipalities in a half-dozen east-central states–—including the city of Pittsburgh, Pennsylvania–local anti-corporate ordinances in environmental fights. “They won’t bring the outcomes that are needed.”

“We don’t think that is the right strategic move at this time because it will be overturned,” Cobb said, when asked why his coalition’s members do not pursue CELDF-style changes in law, citing his own experience in Humboldt County, California, where a county ordinance was reversed in federal court. “And why will it be overturned; because corporations have constitutional rights, according to the federal district courts and U.S. Supreme Court. The ultimate win has to result in a constitutional amendment.”

This debate—to go narrow or to go big; to focus in Washington or in the states; or what is the relationship between divergent strategies—has not been heard on the airwaves as Americans see the big-spending excesses in the first 2012 presidential contests and as many liberal public interest groups focus on the anniversary of the Citizens United ruling. But it is a vast middle ground that is not esoteric or fruitless.

It is not difficult to understand the substance of the law or the choices before Congress. Do people want to see candidates like Newt Gingrich knocked from the lead in Iowa with millions of dollars in largely negative TV ads from super PACs, which Gingrich decried until a billionaire friend gave $5 million to a pro-Newt super PAC before the upcoming South Carolina primary? Do they want to see public financing as a way that non-wealthy candidates can run for federal office? Do they want to see corporations banned from spending money on ballot measures in states like California? Do they want to see limits imposed on all political donations and expenditures to prevent corruption? Do they want to see all money—above the smallest donations—flowing in and out of campaigns and electioneering reported in a timely way?

And what loopholes do people want to let slip into the latest reform proposals in Congress—since every amendment proposed thus far contains exceptions giving a way for people with the means to monopolize the microphone? Does it matter that groups representing communities of color, like the NAACP, could lose their rights to run as a non-profit corporation which includes the right of assembly and to speak on behalf of its members? Should property owners lose a constitutional due process right to sue if the government seizes their property?

These are some of the questions that are not being clearly discussed as many progressive groups are increasingly promoting punishing corporate America by revoking all their constitutional rights. But raising these very questions, elevating the public discussion around them, and getting to specifics is precisely what is needed before any prospect for reform will be taken more seriously.

Democracy’s Nemesis: The Supreme Court

“Rarely have so few imposed so much damage on so many,” is how Bill Moyers refers to the Supreme Court’s deregulation of money in politics, in a forward to a new book on how decades of Court doctrine have increased political speech for corporations while leaving individuals’ rights unchanged and in some cases diminished. These rulings are not hard to understand. But they must be understood to coherently discuss what reforms and choices are available to Americans in 2012.

Today’s rules for raising and spending campaign cash go back to the post-Watergate era when Congress decreed that campaign donations and political spending could be regulated. With a few temporary exceptions, since 1976 the Court has been rolling back that proposition. In 1976, the Court held in Buckley v. Valeo that spending money was a form of political speech—not conduct—entitled to the highest First Amendment protection. Buckley ended congressional and state limits, and enabled wealthy individuals to spend unlimited sums from their own pockets in their runs for office.

But that was just the beginning. In 1978, in Bank of Boston v. Bellotti, a case involving a Massachusetts ballot referendum, the Court held that corporations could spend money in non-candidate elections. No candidate meant nobody could be corrupted by donations, it held. Bellotti invalidated laws in 30 states, prompting a subsequent explosion of corporate-financed ballot measures in states with that option, a significant factor in undermining the legislative process in those state capitals.

This campaign finance landscape essentially held until John Roberts became Chief Justice. In the intervening years, however, the Supreme Court continued to expand corporate speech rights—repeatedly ruling that commercial speech, including advertising and product labeling, was more deserving of First Amendment protection than public-interest efforts by local, state and federal governments.

The Supreme Court blocked efforts to include energy conservation notices in utility bills. Lower federal courts followed and subsequently rejected pro-consumer labels and health warnings on milk, tobacco and cellphones. Another ruling upheld pharmaceutical companies’ right to use medical records for commercial purposes, diminishing personal privacy. And another rulingheld that corporations have constitutional protection against searches by federal agencies. Thus in a range of rulings beyond elections, the federal judiciary expanded corporate constitutional rights and eroded legislated public protections.

“In the last few years, the Supreme Court and lower federal courts have shown a new hostility toward laws that regulate the economy and try to limit the effects of economic power,” wrote Jedediah Purdy in Democracy Journal’s Winter 2012 issue. “The First Amendment has helped the Supreme Court do for the consumer capitalism of the Information Age what freedoms of contract did for the Industrial Age: constitutionally protect certain transactions that lie at the core of the economy.”

The Court is not unable to distinguish corporations from people as many activists assume. The Roberts Court ruled in 2011, without dissent, that corporations are not entitled to a personal privacy right exemption to block Freedom of Information Act requests. Chief Justice Roberts, who wrote the opinion, concluded by saying the justices “trust that AT&T will not take it personally.” But this was not a constitutional decision. And in elections, the Court has blurred the distinctions between corporate and individual participants.

In Citizens United, the Court turned a relatively narrow case into a giant leap forward for corporate electioneering. The ruling did a handful of things. It first struck down a prohibition that barred broadcasting a certain type of political ad—almost always negative and from sponsors who barely identified themselves—in the 60 days before an election. That provision in a 2002 campaign reform law tried to elevate political debate. It then overturned parts of prior Supreme Court rulings that said independent corporate spending could be regulated. Thus it undermined a century-old regime barring direct corporate participation in elections, elevating corporate political rights to the same level as those of citizens.

The Court’s ideological conservative majority did not stop with Citizens United. Last June, it chipped away at public financing laws by siding with Buckley’s protection of independently wealthy candidates. In Arizona Free Enterprise Club v. Bennett, it struck down a matching funds formula in Arizona’s public financing law that gave additional funds to publicly financed candidates if a rival personally spent more than a stated amount. The ruling gutted the law but said public financing was still permissible.

Too Little, Too Much

The amendment proposals fall into two categories with some overlap in between. The first group takes a legislative empowerment approach. They seek to return the campaign finance landscape to pre-Buckley days, stating that Congress and the states have power to regulate the raising and spending of money in elections. Proposals by Rep. Donna Edwards, D-Maryland, on theHouse side, and Sen. Tom Udall, D-New Mexico, on the Senate side, take this route. In other words, they seek to reclaim the power to regulate campaign spending away from the Supreme Court.

The opening clause in Edwards’  proposal, “Nothing in this Constitution shall prohibit Congress and the States,” is very important, Tribe said, because it specifically tells the Supreme Court how the Constitution is not to be read. “Proposals that merely affirm legislative power to enact spending caps on corporations or individuals,” Tribe pointed out, “could well fail to achieve their objectives because they don’t directly address how the Supreme Court has read the First Amendment’s restrictions on such legislative power.”

However, Edwards’s language does not necessarily address some recent political trends that did not exist when Buckley was issued. Supposedly “independent” spending by very rich individuals, such as Sheldon Adelson’s recent $5 million gift to a super PAC supporting Newt Gingrich, would not be limited by her proposal because it would only limit “funds for political activity by any corporation.”

Tribe said Congress had to be more precise to not leave any room for the Court to meddle. Slightly more specific wording that addresses both wealthy individuals and corporations was in Udall’s proposal, which seeks broader authority to regulate donations and spending “of money and in-kind equivalents with respect to Federal elections.”

Neither the Edwards nor Udall resolutions mention public financing, however. Edwards’ proposal would stop corporate spending in ballot initiatives, which would reverse the Court’s Bellotti decision. That could significantly change political dynamics in initiative states like California, where big business routinely spend millions on these campaigns. Udall’s proposal, in contrast, only focuses on candidate elections.

Another legislative empowerment approach is a bipartisan proposal from Rep. Walter Jones, R-SC, and Rep. John Yarmouth, D-KY. It would allow limits on people or groups who might seek to monopolize political microphones and also would revive public financing. It seeks to close a loophole that emerged after Buckley where political groups evaded regulation by raising issues associated with the candidates, instead of specific words urging their election or defeat. It also says Congress can create a “mandatory public financing system” and it would make Election Day a holiday.

The second type of amendment proposals—most notably identical measures from Rep. Ted Deutch, D-FL, and Sen. Bernie Sanders, I-VT, a like-minded measure from Rep. Jim McGovern, D-MA, and another from Rep. Keith Ellison, D-MI—seek to address the distinct issue of corporate personhood by declaring, as in the McGovern proposal, “the rights protected by this Constitution to be the rights of natural persons.”

These measures, in varying ways, would strip corporations and other business and possibly charitable entities of their constitutional rights—and not just those pertaining to election spending or even under the First Amendment, although most of them make exceptions for “freedom of the press.” The most detailed language is in the Deutch-Sanders proposal. It has been won the support of most progressive groups.

The Deutch-Sanders proposal goes on to ban “corporate and other private entities” from contributing or spending money “in any election.” Like the first group of proposals, it also grants Congress and states “power to regulate and set limits” on campaign donations and spending. By explicitly targeting profit-seeking corporations and their promoters, it carves out an exception for non-profits—a distinction not made in McGovern’s proposal and most of the grassroots advocacy.

Details are important. The Deutch-Sanders amendment would not stop groups like Citizens United, the non-profit group whose anti-Hillary Clinton video was at issue in the Supreme Court case, or some super PACs that are also organized as non-profits because it carves out an exception for non-profits. Robert Weissman, the President of Public Citizen, which supports this amendment, said that its authors discussed what rights corporations should have and concluded that none should be granted to for-profit entities under the Constitution. Congressional legislation could address those rights as needed, he said.

That is a consequential decision and not a widely explained one. It enlarges the focus on tackling the distortions brought by big money in politics to a wider strike at the legal form used for much of the country’s business transactions. The Deutch-Sanders proposals would strip businesses of any size—not just big corporations—of the due process right to sue if property were seized. Liberal scholars point to the way President Truman sought to seize corporate assets—steel mills after World War Two—before being stopped by the Supreme Court in a famous 1952 decision.

Proposals from two leading grassroots groups, Move To Amend and Free Speech For People—reflected in the McGovern proposal—would strip constitutional rights from all corporations, for-profit and non-profit. That provision, were it in effect during the Civil Rights movement, could have stopped the NAACP from operating. That very issue—did the NAACP, as a non-profit corporation, have First Amendment rights to assemble and speak for members—arose in the famous 1963 Supreme Court case and ruling, NAACP v. Button, a where the affirmed the NAACP’s First Amendment freedom to assemble and speak.

These kinds of consequences and issues are not too complicated to discuss or understand. They should be the staple of progressive talk radio shows, but mostly they are not. Instead, progressives driving the anti-Citizens United and corporate personhood bandwagon are not being specific enough to threaten the big money forces in America. Instead, they risk alienating supporters by overpromising—like Obama.

“To focus on the fact that corporations are not technically people seems to be missing the point,” said Tokaji, Election Law Journal’s co-editor. “It’s really less focused on who’s a person and who’s not, than on the fact that certain big money interests are able to drown out other voices in the political conversation.” To Tokaji, the most promising avenue is exploring how public financing can be revived under the current Court—especially since it did not reject it in wholesale fashion in the Arizona case. “If we want to talk about what meaningful reform can be accomplished given the constitutional doctrine we’ve really got, I think we are talking about public financing.”

There is one other key piece of this discussion getting lost in the growing momentum behind proposals in Washington. That is what action can be taken in the states beyond sending e-mail blasts and resolutions to Congress telling them to act. It is incorrect to suggest that nothing short of a constitutional amendment, reconstituting the current Supreme Court, and electing a new congressional majority will have any meaningful impact—and isn’t worth trying.

Actions at the state level could be taken, said Erwin Chemerinsky, founding dean of University of California Irvine School of Law and a respected constitutional scholar. Beyond passing more disclosure laws that report political spending, states could require shareholders to approve corporate political expenditures. “These kinds of laws have been adopted for unions. It’s time to do it with regard to corporations,” he said.

Another idea is legislation barring a state contractor from spending money for partisan election activities, much like the federal Hatch Act of 1939 limiting federal civil servants from a range of partisan activities. “There are a number of legislative things that can be done to lessen the ill effects of Citizens United,” Chemerinsky said. “The legislative changes are a lot more realistic than a constitutional change.”

The Montana Supreme Court’s recent ruling that their state had a compelling interest to regulate how corporations can raise and spend money in elections, and can establish that interestwithin Supreme Court doctrine, is an example of a state taking this stance. The ruling raises questions that may end up before the U.S. Supreme Court. Similarly, the City of San Diego, California, is in court defending local corporate contribution limits after being sued by the Republican activist attorney who brought the Citizens United suit. And the New York state Legislature is poised to adopt a public financing regime, Weissman said.

Neither constitutional scholars nor movement activists view these stances as insignificant.

But these steps involve moving beyond bumper sticker sloganeering and rhetoric beating up corporations. This growing movement needs to speak more clearly, elevate the discussion and educate Americans, who know very well what is wrong with American politics and want to hear about solutions that work.

The Community Environmental Legal Defense Fund’s Price said today is a rare historic moment and worries that too much oxygen is being consumed by the focus on a federal amendment in Washington and not on changing local and state laws—or even state constitutions. After a half-hour interview, he offered a personal plea that deserves to be heeded by all in this progressive movement.

“The liberal progressive line—and I have been there most of my life—sees a victory as being on the side of the angels, whether or not you actually create outcomes. I am tired of moral victories. I want some real ones.”

“It’s simple—any company that is paid with taxpayer dollars should be required to disclose political contributions,” said Rep. Anna Eshoo, D-California, who has pushed for the White House to issue the order. “With public dollars come public responsibilities, and I hope President Obama will issue his executive order right away.”

The order, if issued, would likely be the only campaign finance initiative to emerge from Washington this year as nothing is expected from Congress. It would take effect after the Federal Acquisition Regulatory Council adopts new disclosure rules. That could come as the 2012 election season moves beyond the primaries and offer a new way to see who is behind the newest independent groups spending millions on political attack ads.

“Most of the major corporate players are also government contractors,” Holman said. “So if we get this executive order approved, we will get a comprehensive picture of how corporations are spending money in elections.”

Spending on federal contracts was $541 billion in 2010, which was about 4 percent of the gross domestic product, according to the Congressional Research Service, and almost 15 percent of the federal budget. The top 100 contractors are some of America’s biggest firms, and include support services for the military overseas, weapons makers, computer companies, telecommunication firms and other service providers. Companies that could fall under the disclosure order employ about 22 percent of the domestic workforce, CRS said.

The proposed executive order emerged last April, where it swiftly drew condemnation from some of Washington’s biggest business lobbies, including the Professional Services Council, the Aerospace Industries Association and the U.S. Chamber of Commerce. Almost immediately, Republicans in the House and Senate began adding amendments to appropriations bills prohibiting federal agencies from collecting the political contribution information as part of the procurement process.

Rep. Eshoo led the Democrats’ response by making floor speeches and introducing short amendments to spending bills requiring the contractor disclosure.

“I rise to call for transparency and disclosure in our system and throughout our government,” Eshoo said, in a typical speech. “In 2002, when we voted to pass the historic McCain-Feingold campaign finance bill, most Republicans voted no, saying we needed disclosure… They said we needed to put spending out in the open and let the voters assess it. Today, when the president proposes requiring contractors to disclose their spending and not to limit it, Republicans are up in arms. They say it will politicize the contracting process. But when contractors can spend money in elections, the contracting process is already politicized.”

In July 2011, Eshoo sent a letter, signed by 62 other House Democrats, urging President Obama to issue the executive order. That letter noted that a handful of states ban forms of political spending by contractors, citing Connecticut, New Jersey, West Virginia and Hawaii. It also noted that since 1994, the Securities and Exchange Commission has barred brokers and securities dealers and their PACs from making campaign contributions to bond-issuing officials. The SEC rule was upheld in court.

“Political expenditures are already well-known to those that make them and to the officials who benefit,” she concluded in the letter urging the administration to action.

However, the White House took no further action after last summer. Meanwhile, every time Eshoo offered a disclosure amendment it prompted a counter measure from House Republicans. The stalemate ended in December, when a compromise was reached. The GOP’s stated objections concerned disclosing political contributions before contracts were awarded—in the bidding stage. The House Republicans withdrew their objection once Eshoo and Democratic leaders agreed to limit disclosure to after federal contracts had been awarded.

The most recent spending bill to pass the House removed those barriers, Eshoo said last month. “Today’s compromise omnibus spending bill leaves the President free to require disclosure from any company receiving taxpayer dollars,” she said, alluding to the new window for the White House to move ahead with an executive order.

“Now we have the perfect window to get it done,” Holman said. “The [Republicans' legislative] riders have been removed.”

Neither Eshoo’s office nor Public Citizen’s Holman have seen newer drafts of the executive order since it circulated in April. That initial draft would report contributions to third-party groups, including the super PACs that spent millions on television ads before the Iowa Caucuses—supposedly independent of candidates.

Their strategy has been simple: raise the barriers by complicating the rules to register to vote, to get a ballot, to vote early or speedily. What follows are seven major trends that will affect you if you live in a state with new rules. Republicans know that most people do not pay attention to the fine print of election law. They get excited in the final days before presidential votes. But that may not be good enough in 2012.

Whether you are encouraged, discouraged or something in between about the coming presidential season, if you want to vote, look at these trends described below, see if you live in one of these states, and plan ahead: to register, to get the right ID and to know where you can vote. If you don’t, the Republicans may silence your vote and voice.

“Heading into 2012, we are seeing the largest assault on the right to vote since the post-Reconstruction Era,” said Denise Lieberman, senior attorney with Advancement Project, a national civil rights organization. “This is an unprecedented attack on voting that could affect more than 5 million voters in 2012; in states that represent nearly two-thirds of the electoral votes needed to win the presidency. Twenty new laws and executive orders in 14 states stand to turn back the clock and make it harder to vote. In 2011, two-thirds of the states introduced legislation that could impede voters and more is on the horizon for 2012.”

Tactic One: Toughen Voter ID Requirements

Before this year, most states allowed voters to use all kinds of identification, even utility bills, to get a ballot. Not anymore. Now a non-expired, state-issued photo ID is needed in eight states: Alabama, Kansas, Rhode Island, South Carolina, Mississippi, Tennessee, Texas and Wisconsin. Looking at 2012, similar bills or ballot measures to toughen ID rules will surface in New Hampshire, North Carolina, Nebraska, New Jersey, Maine, Minnesota and Missouri, where legislation already has been filed.

Before 2011, only two states, Georgia and Indiana, prevented voters from casting ballots if they did not have a government-issued photo ID. In 16 mostly southern states with a history of Jim Crow laws, the Justice Department must “pre-clear,” or approve, any change to voting laws before they can take effect. The ID laws in Alabama, South Carolina and Texas have not yet been cleared. Last week, Attorney General Eric Holder gave a major voting rights speech opposing all voter suppression tactics. But the Justice Department has not yet made a determination about these and other new voting laws in “covered” states.

Here’s why this is such a devious strategy. The GOP knows most Americans have little sympathy for people who lack photo ID. Polls by Democrats show that. There is a class divide here, where minorities and lower-income people, including students, disproportionately lack state-issued photo IDs. College ID cards are not the same. The GOP also knows that recent presidential elections often come down to very close votes in a handful of states, and many people in those states will want to vote next fall but will discover they cannot.

The voting eligible population of Kansas, South Carolina, Tennessee, Texas and Wisconsin, which all have new ID laws, is 29 million. Of that, the Brennan Center for Justice at NYU Law School has reported that 10.3 percent — or 3.2 million voters — lack a state photo ID. In those states, Lieberman said the number of voters without the requisite photo ID is larger than the margin of victory in the 2008 presidential or U.S. Senate (Texas) races. In other words, with one change in law, the GOP will require Democrats and Independents to do a better job turning out voters in 2012 than they did in 2008 when electing Obama.

Tactic Two: Create Hurdles To Get Required ID

It takes time, money, patience and determination to get the required photo IDs. In some states, state budget crises have led to shortening the work weeks at the state agency, notably motor vehicles, or even closing branch offices — such as in Wisconsin, Tennessee and Texas — where people need to go to get the ID. The ID itself may cost between $10 and $30, but there can be hidden costs if other forms of identification are needed to verify one’s identity and residency necessary to get a state ID. For example, not everybody has a birth certificate, marriage license, passport, divorce record or other documents, adding a complicating and time-consuming factor.

The requirements for secondary IDs, if available, can cost upward of $200 (for naturalization papers, not passports), and 17 states require a photo ID to get a copy of a birth certificate, which by itself can take weeks or months. Many elderly people born at home simply do not have these underlying papers, transportation or funds to get the required voting ID. These bureaucratic steps amount to a poll tax, a notorious tactic used to stop African Americans and poor whites from voting.

Tactic Three: Intimidate Voter Registration Groups

The Republican Party knows that the majority of people who register to vote in registration drives tend to be in minority and low-income communities, and are likely to vote for Democrats, if they vote at all. They also know that voter registration drives can be sloppily run, with errors on as many as one-third of all the applications tuned in, although local election administrators are well-versed in weeding out bad forms (although they resent the last-minute workloads).

As a result, seven states tried to add new restrictions on groups and their members doing voter registration drives in 2011, and these laws passed in Florida and Texas. The restrictions in these populous states must be pre-cleared by the Justice Department, which has yet to act. But the impact of these laws — which, in Florida, creates a more rigorous schedule to turn in applications and imposes stiff fines for errors — has already discouraged some groups, such as Florida’s League of Women Voters, from even getting started for 2012. In addition to Florida and Texas, Michigan is also considering legislation to more aggressively regulate the registration drives.

Tactic Four: Try To Eliminate Same-Day Registration

In recent years, states have tried to make the voting process easier — not harder. One of the most convenient ways to help people to vote is to allow them to register at the polls or county offices and then vote. In 2011, Republicans in Maine and Ohio eliminated same-day registration, although citizen-led organizing overturned the Maine law on Election Day this past November and put a ballot initiative on the November 2012 Ohio ballot, suspending a package of draconian election laws until that vote. Meanwhile, North Carolina’s legislature will consider a bill ending same-day registration next year.

Another hurdle concerns proof of citizenship. Arizona was the first state to require proof of citizenship to register to vote, but that law has been tied up in court. Meanwhile, bills requiring proof of citizenship passed in 2011 in Kansas, Alabama and Tennessee. Only Alabama’s law has to be cleared by the Justice Department, which has yet to act.

Tactic Five: Curtail Early Voting

In recent years, states have also tried to make voting easier for people by creating or expanding the option to vote before the first Tuesday in November. In 2011, five states — Florida, Georgia, Ohio, Tennessee and West Virginia — passed laws rolling back early voting options. Florida’s law reduces early voting from 13 days to seven days. That is potentially very damaging to minority communities, as nearly a third of all Floridians cast early ballots in 2008, with African Americans doing so at twice the rate of whites.

In Ohio, the law — which has been put on hold by a ballot initiative that will appear in November — would have eliminated voting on the Sunday before Election Day. In Georgia, the law reduced early voting from 45 days to 21 days; and in Tennessee from 15 days to 13 days. The changes in Florida, Georgia and Tennessee must be pre-cleared before they can be implemented. However, the Justice Department has yet to make its determination in those states.

Tactic Six: Ban Felons From Voting

Many people remember what the Florida Secretary of State did in 2000 with erroneous lists of convicted felons in her state: she intentionally purged tens of thousands of legal voters, which was one of many factors leading to George W. Bush’s victory in that year’s presidential battleground state. That tactic’s ghost has risen in Florida and Iowa, where governors have issued executive orders either delaying or revoking the rights of former felons to regain their right to vote. Across America, there are 5.3 million people, disproportionately people of color, who cannot vote because of felony convictions.

Tactic Seven: Bleed Election Administration Budgets

This may be the least-understood and most far-reaching barrier as people try to vote in 2012. Already, tight state budgets have given cover to political decisions in Tennessee, Wisconsin and Texas to limit the operating hours of, or close, the state offices where residents can obtain required photo IDs. As a result, waiting times in the offices that remain open have grown longer in Tennessee and Wisconsin. In Texas, there are 34 counties with no Department of Public Safety Offices, including four counties where the Hispanic population is more than 75 percent.

Limiting access to voter-related services before Election Days creates very troubling precedents for Election Day, when longtime polling places might be consolidated and moved with little public notice, or under-staffed by poll workers, who are volunteers — not professional election administrators. In other words, not only do would-be voters in many states have to get their credentials in order, it may take them much longer to vote because poll workers will have more work to do to process voters.

In Madison, Wisconsin, County Clerk Maribeth Witzel-Behl said the time it will take to process voters next November “has at least doubled.” In Florida, 30 percent of voters in 2008 voted early. If that state’s law stands cutting the period in half, that mean perhaps an additional 15 percent of the states’ voters will have to be processed on Election Day, doubling waiting times at peak hours. Meanwhile, as states have to spend millions to produce new voter identification documents, that will cut into promotional messages alerting voters about changes in the process.

And Where Is Obama’s Justice Department?

The biggest variable that may curtail or blunt these various voter suppression tactics is Justice Department taking any number of steps to reject laws limiting or complicating the right to vote in the 16 states covered by the federal Voting Rights Act — which are mostly in the Old South. Attorney General Eric Holder gave a major speech last week in Texas where he criticized the laws aimed at discouraging voters and suppressing votes.

However, the Justice Department’s Civil Rights Division under Obama has not been very assertive in protecting voting rights. In its first two years, it filed fewer lawsuits than the administration of George W. Bush. While it has the power under the Voting Rights Act to reject many of the draconian laws passed by some of the biggest states — notably Texas and Florida — it has yet to do so and the 2012 political season is about to begin.

“The Justice Department plays a very important role,” said Advancement Project’s Lieberman. “Not only are they required to clear new voting laws in states that are subject to this pre-clearance requirement, generally 16 states in the South, but they also have the ability to bring affirmative lawsuits in any state under Section Two of the Voting Rights Act, which prohibits laws that have a discriminatory impact on voting. They can also intervene in other lawsuits alleging constitutional violations.”

The attorney general’s speech last week decried many of the new hurdles to voting. But civil rights lawyers want action — not words — and are nervous about the Department’s reticence to act. Last week, the Advancement Project delivered 120,000 petitions to Attorney General Holder urging the DOJ to do just that: enforce these federal voting laws.

In the meantime, the very people targeted by Republicans — racial minorities, young voters, the working poor, the elderly and people with disabilities — should not take any chances. They should get their identity papers in order, be sure to register before state deadlines, and look for online tools to find polling places. In other words, they need to know and assert their voting rights, because the system may not help them in 2012.