In “Fixing Citizens United,” Professor Geoffrey Stone -- usually a friend to the First Amendment -- argues for a constitutional amendment to “fix” the Citizens United Supreme Court decision. Professor Stone mentions the proposal rather offhandedly, but the idea is a nuclear option. A constitutional amendment -- specifically an amendment limiting the right to political speech -- would fundamentally “break” the Constitution and endanger civil rights and civil liberties for generations.
First, it’s important to be clear on what Citizens United did. The case allowed corporations and unions (including non-profit corporations like the ACLU or National Rifle Association) to spend “general treasury” (non-political action committee) funds on political communications that are not coordinated with a campaign. Citizens United itself has very little to do with the dreaded “Super PACs,” which are primarily funded by individual donations. Individuals have been allowed to spend their own money on political speech since time immemorial (or at least since adoption of the First Amendment). Further, Citizens United has nothing to do with direct contributions to candidates, which are still totally verboten for corporations and unions and strictly limited for individuals.
With that background, here’s the proposed amendment.
In order to ensure a fair and well-functioning electoral process, Congress and the States shall have the authority reasonably to regulate political expenditures and contributions.
When Professor Stone says federal and state governments “shall have the power to regulate political expenditures,” he means to give them the ability to place limits on, and control the content of, political speech, even when it is non-partisan and independent of a campaign. This speech would include typical “vote for X” ads, but would also extend to political “issue” advertisements (“call Senator Reid and tell him to support bill Y”), documentaries by Michael Moore and other political filmmakers and probably even social media platforms like Twitter or Facebook. The problems with such an approach are many.
The Constitution’s radical stability is its greatest strength. The high bar for amending the Constitution -- agreement by two-thirds of both the Senate and the House (or the states), and then three-fourths of state legislatures or constitutional conventions -- exists precisely to deter ill-considered but temporarily popular amendments, which I would argue this is. People are wary to invest resources and time in promoting or championing constitutional amendments because the chances of failure are high. That’s why our Constitution works so well. It’s easy to interpret broadly, but textual change requires effort and sustained support.
Clearly cognizant of this particular concern, Professor Stone suggests that his amendment would not be unprecedented. On the contrary, while not the first amendment responsive to a Supreme Court case, this would be the first amendment in history to limit individual, constitutionally guaranteed rights. The four amendments he mentions as precedent all either clarified the scope of existing constitutional provisions or expanded individual rights. For the curious, I believe the amendments he is referring to are the 11th (states can’t be sued by people in federal court), 14th (expanding equal protection and due process rights in the wake of the Civil War), 16th (federal income tax not unconstitutional) and 26th (voting age no higher than 18).
Further, although success of an amendment limiting individual rights is thankfully unprecedented, proposed amendments certainly are not.
The ACLU has been on the (often lonely) frontline against ill-considered but temporarily popular constitutional amendments to limit civil liberties since its inception. For 20-plus years, we’ve been fighting amendments prompted by Supreme Court decisions in United States v. Eichman and Texas v. Johnson, which held unconstitutional state and federal laws banning flag desecration. We’ve repeatedly opposed the “Victims’ Rights Amendment,” which would unfairly limit certain due process rights, including the right to a fair trial. And (this is the best), Republicans today are calling for an amendment repealing the 14th Amendment’s guarantee of citizenship if you are born in the United States. Some grotesquely call it the “anchor baby” amendment.
Now imagine a world where Stone’s proposed Citizens United amendment serves as real precedent for using the amendment process to limit rights, and both houses of Congress are two-thirds Republican (the latter is not inconceivable even in the next Congress). Flag desecration, victims’ rights and birthright citizenship amendments would just be the beginning. Undoubtedly, you would see additional attempts to limit individual rights through the amendment process simply on the strength of the argument: well, we did it with political speech, why not with pornography, affirmative action, voting requirements, warrantless national security surveillance or any other similarly hot-button issue? You can bet a successful Citizens United amendment would be talking point number one for groups pushing an amendment to overturn Roe v. Wade.
Reasonable minds can and should differ on the influence of “big money” in politics. The legal and policy questions raised by the link between concentrated wealth and political speech are numerous and complicated. We should be discussing the health of our politics, and we should be doing more to, for instance, provide for public financing and promote transparency without quelling anonymous speech. But if there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups like the ACLU (or even billionaires like Sheldon Adelson) from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally “break” the Constitution.
that garners unprecedented new powers from the Citizens United decision won't favor fixing that ill-advised SC ruling. Thus, despite a pretense to reasoned debate, Laura W. Murphy merely offers an illogical defense of an SC ruling that greatly benefits the ACLU. I'm not sure why she felt the need for the rational-debate pretense. The simple exclamation, "Damn, this ruling's good for us and we're going to fight to keep it that way!" would have been an honest and more honorable choice.
That said, I do accept that the US Constitution should be amended only when profound matters not anticipated at its framing press upon us. The truly staggering grip of giant corporations on every aspect of our lives is one such profound matter. Our legislative branch has stood as a weak and ineffective shield, but a shield nonetheless, against corporate depredations against the Republic. By granting corporations personhood and giving them First Amendment rights, the Supreme Court pretty well swept away this last defense. In essence the Supreme Court put our federal and now our state elections on the auction block to go to the highest bidder, and even collectively We the People will likely never have the money needed to beat the corporations at the bidding.
I would therefore favor a constitutional amendment along the lines, "Respecting this Constitution and the amendments thereto, 'people' shall refer to and only to members of the biological species Homo Sapiens."
Lune
If you cannot cast a ballot, you should have ZERO say in politics. Congress MUST go and word the Constitution to make it VERY CLEAR.
Simple, simple, simple.
If lawyers would STOP making these things so comlicated (they only do so to create ways out/around laws and rules...) this country might have a chance of surviving extremist from both political parties.
But alas, they won't...
I think we should make elections pubically funded. I agree with the idea of limiting the amount of money that can be spent in a campaign and by superpacs for a political position or for an issue.
I would make a requirement that TV and radio stations must function for the public news and that their news divisions must be separate from their entertainment divisions. I would include a provision that a certain amount of time must be set aside for political commercials during a campaign season.
I do not agree with restricting the content of that speech. I also believe in a sunshine law, saying campaign and superpac donations must be public knowledge, with an provision that no citizen can be arrested, harrased, denied employment because of his/her personal political donations.
The way to correct Citizens United is through the Congress.
under the aclu's reasoning, only an unlimited soviet news service will secure the masses' freedom of speech.
coincidentally, that's the way the politburo saw it, too.
Basically the gist was that a political group could not make political expenditures on behalf of that group without prior consent.
This would seem to apply to corporations as well. They very often make political speech spending without the approval or consent of the owners of the corporation (the shareholders) and have fought bitterly to avoid giving those shareholders a nay vote on issue spending.
Perhaps sometime soon, someone (a shareholder activist) will latch onto this idea.
1.) The name behind the cash needs to be clearly known. If you're going to run ads on tv at least I should know who you are so I can decide if your message may be colored by your political orientation.
2.) There needs to be some kind of accountability when mass media is used to propagandize or smear or otherwise incite hatred. The mass media isn't like standing out on the lawn shouting ones views, it holds great power and should be used with great responsibility. Sadly this is not the case this decade... the smear tactics used to send us into Iraq (Joe Wilson turned out to be exactly correct) and the birther movement comes to mind.
With fair disclosure and a commitiment to some level of truth and accuracy I'd be more willing to agree with you on this cause.
But the threat of an amendment can be part of it. The Court guards its power jealously. Having a decision reversed by amendment rather than by the Court itself would be a blow to that power. To prevent it, the Court will tack a little further toward reason, if it has to.