Why a constitutional amendment is, in fact, necessary to overturn Citizens United

08/02/2016 09:56 am ET
Democracy Spring protesters outside the U.S. Capitol
Democracy Spring protesters outside the U.S. Capitol

In her speech accepting the Democratic Party nomination for president, Hillary Clinton vowed “if necessary, we will pass a constitutional amendment to overturn Citizens United.”  Make no mistake, it is necessary. We shouldn’t hold our breath waiting for a new Supreme Court to realize that corporations are obviously not people and that campaign spending is not free speech.

Clinton’s stance on Citizens United is not new.  She used almost identical words during the first major speech of her campaign on April 15, 2015, saying “we need to fix our dysfunctional political system and get unaccountable money out of it once and for all, even if it takes a constitutional amendment.” Well before Bernie Sanders decided to run for president, Hilary Clinton went so far as to say that campaign finance reform would be one of the “four big fights” of her campaign.

Clinton then strengthened her position just days before the DNC convention in Philadelphia. In a video message to activists at Netroots Nation, she pledged to introduce a constitutional amendment within the first 30 days of her administration – signaling that it would be a major priority. 

Clinton’s backpedal in Philadelphia to her previous “if necessary” caveat was not in the prepared text of her acceptance speech (nor in her tweet about it.) It is quite possible she was accidentally lapsing to the language that she had used consistently throughout her campaign. But, subconsciously or not, it could also mean that Clinton shares the view of many elites that it is preferable to overturn the Citizens United ruling through continuing the tradition of making Democratic partisan appointments to the U.S. Supreme Court who would reverse the rulings of previous Republican partisans.

As someone who has spent twenty years working to correct supreme errors by unelected judges who think they know how elections work, I’ll happily take a reversal of misguided court opinions any way I can get it. But even if the Supreme Court does fix its own mistakes by reversing its past rulings in Citizens United, it will remain necessary to entrench and expand that position with a formal amendment to our federal constitution.

The biggest problem with relying solely upon a change in personnel to get the Supreme Court to reverse its own recent precedent is that it leaves the door open for the Court to flip back and forth on this issue every ten or twenty years.  In fact, the Roberts Court that issued the Citizens United opinion was blatantly reversing the precedent of the Rehnquist Court which had upheld a ban on corporate and labor union campaign spending just 7 years earlier.  That’s not how a court which pretends to revere precedent is supposed to operate.

Because Supreme Court Justices (especially liberal ones) go to great lengths to act like they aren’t simply reversing previous Court rulings out of their own personal political preferences, it is quite possible that even if Clinton appoints an anti-Citizens Untied justice to the court, the new majority will proceed cautiously and take baby steps away from its past mistakes rather than upholding laws that confront them directly.  That means we could see only a partial roll back of the Court’s assault on campaign finance rules. And, when the composition of the court inevitably changes again, those steps could be reversed.

The fact is, a constitutional amendment to get big money out of politics was necessary even before the Citizens United ruling of 2010.  As far back as 1988, 53 U.S. Senators voted for a constitutional amendment to authorize mandatory spending limits on political campaigns.  This amendment was aimed at overturning a 1976 case, known as Buckley v. Valeo, where a bipartisan court gutted key provisions of the tough reforms Congress passed in the wake of the Watergate scandal.  Buckley allowed billionaires to spend unlimited money on their own campaigns as candidates, and on their own independent expenditures so long as they didn’t coordinate with other candidates or other billionaires.

A new court with Hillary nominees might take us back to the bad old days of 2010, where candidates who catered to billionaires routinely outspent those who stood up for the middle class by huge margins.  But a new Court is unlikely to fix the core problem of Buckley, which equated unlimited campaign spending with free speech.

It’s fine for Hillary Clinton to promise that she’ll appoint justices to the court who understand that Citizens United is a mistake.  Every candidate for the U.S. Senate should be asked if they would confirm a justice who isn’t clearly on record in disagreement past Court dogma that billionaires deserve more free speech that the rest of us.

But Clinton shouldn’t stop there. Surveys indicate that roughly 80 percent of Democrats, Republicans, and Independents think we should pass a constitutional amendment to set limits on money in politics.  In 2012, voters in Colorado approved ballot measures instructing the congressional delegations from those states that a constitutional amendment was explicitly necessary to rein in spending from billionaires and corporations. Voters in California and Washington will consider similar measures this November.

Jeb Bush has called Citizens Unitedridiculous”, Donald Trump says super PACs created by the ruling are a “disaster” (although like Clinton he is willing to use them), and John Kasich has said letting a “handful of billionaires determine who’s going to be president” is not “good for the country.” Senator John McCain calls Citizens Unitedthe worst decision ever.” But none of these Republicans have stepped forward to say an amendment is necessary to fix this problem. Lindsay Graham was the sole Republican presidential candidate this cycle willing to take that step.  With so much agreement on the problem, Secretary Clinton would be wise to firmly stake out the need for a solution that goes beyond a continued dependence on the courts.

If we want to make a reversal of Citizens United permanent, and more importantly if we want to go beyond fixing the mistakes of that one ruling and allow for truly workable limits on big money in politics, then a constitutional amendment is necessary, right now.  Clinton should remove her caveats and move on to full-throated advocacy of what we need to restore a government of the people, by the people, and for the people.

 

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