Refusing to give his Republican opponents an edge, President Obama has just blessed a Super PAC to rally his own billionaires for election year combat. While it's only natural for him to maintain parity, the president should also call upon Congress to pass a statute that forces the Supreme Court to reconsider its extreme position in Citizens United.
It's a mistake to treat Justice Kennedy's opinion for the Court as written in stone. To the contrary, Kennedy explicitly says that it "surely" would be a "cause for concern" if "elected officials succumb to improper influences from independent expenditures." He simply found that Congress hadn't established that improper influence was a real problem, and even suggested that he would give "due deference" to such a finding.
The president should call on the House and Senate to take up Kennedy's invitation. Congress no longer needs to speculate on how "independent" Super PACs, controlled by each candidate's loyalists, might degrade our politics. The latest figures already show Super PACs allied with Republican presidential candidates have collected $70 million -- almost half the $155 million the candidates have collected on their own. In the cases of Newt Gingrich and Rick Santorum, the "independent" Super-PAC is the dominant financial player. If Mitt Romney fails to win a clear majority by the time he gets to Tampa, the financial backers of these minority candidates will have real weight in defining the deal that puts Romney over the top. With Obama joining the fray, Super PACs will be playing a very large role in the general election as well.
While this is inevitable, the president should call for a statute that urges the Supreme Court to make this the last election that lurches toward plutocracy. Congress should pass a law that puts the Court on notice of emerging realities. After formally finding the facts, the statute should grant the Attorney General standing to urge the judiciary to issue a declaratory judgment repudiating Citizens United in the light of changed conditions.
Congress has used this strategy before. Section Ten of the Voting Rights Act of 1965 took aim at the Breedlove case, in which the Supreme Court had squarely upheld the poll tax in federal elections. Section Ten responded by finding, after lengthy hearings, that the tax "imposes unreasonable financial hardship" and "precludes persons of limited means from voting." It then directed the Attorney General to urge the Justices to overrule Breedlove in the light of its factual findings. On signing the act, President Johnson followed through, announcing that "tomorrow at 1 p.m., the Attorney General has been directed to file a lawsuit challenging the constitutionality of the poll tax."
The strategy proved remarkably successful. While lower courts generally treat Supreme Court precedent as binding, the Justice Department used the Congressional findings to convince the courts of appeal to ignore Breedlove and declare the poll tax unconstitutional. The Supreme Court then dealt the final blow by declaring all poll-taxes unconstitutional in its landmark decision of Harper v. Board of Elections. The Court announced its decision just as the Section ten cases were reaching its docket. But its great turnaround cannot be understood without recognizing the role of Congress and the president in shifting the terms of the constitutional debate. (See the detailed study by Bruce Ackerman and Jennifer Nou, Canonizing the Civil Rights Revolution: The People and the Poll Tax, 103 Nw. U. L. Rev 63 (2009).)
Congress should take the same path today. Perhaps the five judge majority in Citizens United will be unimpressed by Congress' statement of real-world facts, and its assessment of the dangers of pervasive corruption that lie ahead.
But perhaps not. It is very likely that Justice Kennedy simply didn't predict the revolutionary implications of his decision. While constitutional revolutionaries like Clarence Thomas or Antonin Scalia might dismiss Congressional findings, Justice Kennedy is of a Burkean disposition -- attentive to the facts, and reluctant to endorse radical change. If given the opportunity, he may well lead the Court to rethink Citizen's United basic premises.
It is in nobody's interest to see the Court's legitimacy damaged as Super PACs increasingly erode Americans' fundamental commitment to democracy. The Court should be given a second-chance to engage in a collaborative effort with the president and Congress to define the meaning of free speech after confronting the hard truths of American politics.
Bruce Ackerman and Ian Ayres are professors of law at Yale, and the authors of Voting with Dollars: A New Paradigm for Campaign Reform.