Do we need a constitutional amendment to overturn the Supreme Court's ruling in Citizens United v. FEC? Should opponents of the ruling pressure the Supreme Court to reverse course, and also seek changes in the composition of the Court through the appointment process? The answer is yes. That is the lesson one gleans from a careful study of the successful effort by progressives at the turn of the 20th Century to overturn the Supreme Court's 5-4 ruling in Pollock v. Farmers' Loan & Trust Co., through ratification of the Sixteenth Amendment.
The parallels between the Court's rulings in Pollock and Citizens United are striking. In 1895, a sharply-divided Supreme Court, led by a five-Justice, conservative, pro-corporate majority, overturned long-standing Court precedents to strike down a federal income tax statute, effectively eliminating the federal government's ability to enact and enforce a progressive tax on incomes. The dissenters in Pollock castigated the ruling for departing from settled constitutional principles, with Justice John Marshall Harlan called the ruling a "disaster" "subjugating the people to 'the dominion of aggregated wealth." The Pollock ruling ushered in a 40-year period, derisively known today as the Lochner-era, during which a conservative Supreme Court issued dozens of rulings that established a constitutional barrier to the regulation and taxation of corporations. Pollock inflamed the nation, leading to calls to pass a new income tax statute to force the Court to reverse itself as well as to calls to adopt a constitutional amendment.
Citizens United, like Pollock, was a 5-4 ruling by a conservative majority on the Supreme Court. Like Pollock, Citizens United reversed prior Court precedent and departed from constitutional first principles: corporations are not citizens, and they cannot vote or run for office, but the Citizens United majority nevertheless ruled that corporations can overwhelm the political process with money generated by special privileges they alone receive. Citizens United also drew a lengthy and powerful dissent, authored by Justice John Paul Stevens, that affirmed the government's broad power to regulate corporations in the interest of "We the People." Like Pollock, Citizens United was not an isolated ruling or an outlier: it is one of many rulings by the Roberts Court that favor corporate interests. And, as polling and President Obama's harsh condemnation of the Court's ruling indicate, it too has generated strong and widespread opposition.
The story of how the American people worked to overturn Pollock is thus directly relevant to advocates working to overturn Citizens United today. In a relatively short span of time in the midst of the Lochner-era, the campaign to overrule Pollock succeeded with the ratification of the Sixteenth Amendment, expressly affirming that Congress has broad power to enact a progressive income tax and bringing the Constitution back in line with first principles that give Congress broad power to solve national problems. This is an inspiring reminder that the American people can mobilize successfully to take the Constitution back from the Court. Those who think an amendment overturning Citizens United is a pipedream need to wrestle with this history and the fact that the Pollock/Sixteenth Amendment story is not an isolated one. Throughout our history, the American people have amended the Constitution in order to undo Court rulings that misinterpreted the Constitution. In addition to the Sixteenth Amendment, the Eleventh, Fourteenth, and Twenty-Sixth amendments were all sparked, at least in part, by divided Supreme Court rulings. In these Amendments, the American people agreed that the dissenting opinions, not the majority, better articulated the meaning of the Constitution.
The story of Pollock and the Sixteenth Amendment also demonstrates that, in a campaign to overturn a Supreme Court decision, an amendment strategy and an effort to push the Court to reconsider its ruling can go hand-in-hand. As pressure on the Court to reverse course mounted, some conservatives got behind an amendment to save the Court from having to admit error. Other conservatives cynically supported an amendment believing that - because the amendment process is extremely difficult - this was the best way to head off any responsive action. This strategy backfired when Congress and 42 states voted to ratify the Sixteenth Amendment, fully enshrining the progressive income tax in our nation's charter. This shows that the political winds blow in strange ways and it is never wise to put all one's eggs in any particular basket.
Finally, the post-ratification history of the Sixteenth Amendment indicates that the opponents of Citizens United should not be satisfied even if the ruling is ultimately reversed by the Court or effectively overturned by an amendment. Because the progressive opponents of Pollock did not decisively alter the composition of the Lochner-era Court, the era continued on for more than two decades after ratification of the Sixteenth Amendment. Indeed, the Lochner-era Court gave a stingy reading to the Sixteenth Amendment itself, reading it to preserve a significant part of Pollock's reasoning. It was only after President Franklin Roosevelt dramatically changed the composition of the Supreme Court that the Lochner-era, and the vestiges of Pollock, disappeared from the law.
This Progressive Era history yields three critical lessons for modern progressives fighting Citizens United. First, fights to overturn Supreme Court rulings are long hauls, which often play out over decades, not years. Second, amendment campaigns and political efforts to pressure the Court itself to reverse course can complement each other, sometimes in surprising ways. Third, to truly be successful, any effort to overturn a particular decision must be supplemented with a broader effort to change the composition of the Court through appointments.
Reversing Citizens United will not be easy, as anyone who has been working in opposition to the ruling for the two years since it was decided already knows. But the progressive reformers of a century ago have shown us how it can be done.
(This post was written with David Gans and Ryan Woo, the lead authors of Constitutional Accountability Center's new Issue Brief, Reversing Citizens United: Lessons from the Sixteenth Amendment.)